New Proposed Proposition 65 Regulations Equal Less Help and More Hurt (and Litigation) for Industry

January 21, 2015

On January 12, 2015, California’s Office of Environmental Health Hazard Assessment (“OEHHA”) released a formal rulemaking draft of new Proposition 65 warning regulations (“Draft Regulations”). The Draft Regulations fall far short of Governor Brown’s stated intent to reform Proposition 65 to reduce frivolous lawsuits, improve warnings and improve the public’s access to information. In fact, the Draft Regulations will likely have the opposite effect – increasing the number of frivolous lawsuits brought by bounty-hunters, and creating greater consumer confusion over the meaning of Proposition 65 warnings.

The Draft Regulations have two components. The first creates a Lead Agency Website, which will be operated by OEHHA, and will provide supplemental information to the public about potential exposures to Proposition 65 listed chemicals, including how they might be exposed, and how they might reduce or avoid such exposures. The second component is a complete overhaul of the regulations governing what is a “clear and reasonable warning.” The key elements of the new “clear and reasonable warning” regulations are:

• Mandatory combination of new warning language and symbols that must be used.
• Specifies the methods of warning for certain products or industries.
• List of 12 chemicals or groups of chemicals that must be specifically identified by name in Proposition 65 warnings for products that contain those chemicals.
• Specific warning requirements for certain products and industries. For example, the specific warnings requirements include alcoholic beverages, food, furniture, and parking garages.
• Requirements effecting whether a warning need only be given in one language or multiple languages.

The Draft Regulations fall short of the reforms needed to materially reduce the expanding docket of Proposition 65 litigation claims and cases. Instead, the Draft Regulations will likely have the impact of placing a greater burden on industry for compliance with costly modifications to existing compliance programs, and increase the number of Proposition 65 lawsuits. A few of the key problems include:

1. The Lead Agency Website will create additional burdens on industry and may include inaccurate or outdated information that confuses the consumer. For example, there does not appear to be a way for a company to withdraw or rapidly modify the information posted on the OEHHA website if a product’s formulation changes. While the draft regulations state that a company will not be sued for the information it provides or posts to the website for the failure to comply with the warning regulations, it is still unclear whether there will be other consequences if the information provided is incorrect or inaccurate.
2. The list of 12 chemicals or groups of chemicals, and the requirement that they be specifically listed in a warning will create new opportunities for bounty-hunters to file lawsuits against companies for providing an otherwise clear and reasonable warning if they fail to list one or more of these 12 chemicals.
3. The change in the content of the warning language from “this product contains a chemical” to “this product can expose you to a chemical” will create confusion for consumers and potentially greater liability exposure in toxic tort litigation. The new language implies there will be an exposure when there may, in fact, never be an exposure based upon how the product is used. In addition, for warnings that appear on the product label, the warning content will simply state “WARNING Cancer” or “WARNING Reproductive Harm” or both. This terminology implies that the product will cause cancer or reproductive harm rather than that the product may expose an individual to a chemical that may cause cancer or reproductive harm, overstating the risks and leading to further consumer confusion.
4. The proposed changes in the regulations create further problems with safe harbor warnings in court approved consent decrees and settlements. It is unclear if these warnings, negotiated and implemented at great expense, will be nullified or superseded by the warnings required in the proposed regulations.
5. The requirement that the warning appear in the same languages as those on the label or labeling creates additional burdens and cost. If a product label contains information in both English and Spanish, for example, then the Proposition 65 warning must appear in both languages to satisfy the clear and reasonable warning requirement. This opens the door for bounty hunter lawsuits over whether the warning should have been provided in more than one language.

While OEHHA made some effort to address industry concerns in the Draft Regulations, they have not gone far enough. Without further changes, the Draft Regulations will likely be a boon to bounty hunter Proposition 65 plaintiffs, and impose an ever increasing burden on industry. OEHHA is urging stakeholders to participate in the regulatory process and provide comments. OEHHA will accept public comments on the draft proposal from January 16 through April 8, 2015. In addition, OEHHA will convene a public meeting in Sacramento on March 25, 2015 to receive input from stakeholders.

For additional information or to submit comments for your business or industry group, please contact us.

The Draft regulations can be accessed here and here.