OEHHA Adopts Unclear Amendments to the “Clear and Reasonable Warning” Regulations – Exacerbating Proposition 65 Problems

Environmental Law  

September 9, 2016

On September 2, 2016, the Office of Environmental Health Hazard Assessment (“OEHHA”) adopted amendments to Proposition 65’s clear and reasonable warning requirement.  The adoption of these amendments comes nearly two years after OEHHA began the process of amending the clear and reasonable warning regulations in an attempt to reduce over-warning, consumer confusion, and reduce the number of frivolous lawsuits.  Unfortunately, the amended regulations will not accomplish reform in any of these areas; instead, they will very likely exacerbate the problems of over-warning, misunderstandings by consumers, and rampant lawsuit abuse.

The amended regulations change what constitutes a clear and reasonable warning under Proposition 65.  Among other changes, the amended regulations require a Proposition 65 warning to include:

  • A symbol consisting of a black exclamation point in a yellow equilateral triangle with a bold black outline;
  • The identification of at least one substance for which the warning is being provided for each endpoint, if there is more than one endpoint;
  • The URL for OEHHA’s new Proposition 65 website, which contains supplemental information on listed substances; and
  • The warning in another language if any consumer information on the product sign, label, or shelf tag is provided in another language.

These changes do little to remedy one of the fundamental problems with Proposition 65 warnings – the labels fail to actually communicate risk to consumers, which was the original purpose behind Proposition 65.  More importantly, these changes will worsen another fundamental problem with Proposition 65 — the number of frivolous lawsuits filed against businesses selling products in California.  For example, Section 25601(c)’s requirement that a business include the name of one or more listed chemicals for each endpoint (cancer or reproductive toxicity) where a warning is being provided for more than one endpoint is ambiguous.  This provision creates the potential for “bad warning” lawsuits where a company provides a warning that lists a chemical for one endpoint (cancer), but chooses not to list another chemical, present in the product in small quantities, associated with the other endpoint (reproductive toxicity).  In this context, the company may be sued for failing to identify the second chemical associated with reproductive toxicity, and be faced with settling or defending itself in prolonged, expensive litigation.

The amended regulations have a delayed effective date, taking effect on August 30, 2018.  In the interim, businesses can choose to provide warnings compliant with the amended regulations or with the regulations prior to amendment.  Practically, businesses from all industries will need to get up to speed quickly on the amended regulations, and how they impact the content and manner of Prop 65 warnings.  For assistance in understanding how the amended regulations may impact your business, please contact us.