Warning! More Changes Ahead for California Proposition 65

Environmental Law  

April 15, 2014

OEHHA held a Proposition 65 workshop for a new pre-regulatory proposal on April 14, 2014.  Proposition 65 was approved by voters in 1986 to address concerns over exposure to toxic chemicals.  OEHHA, which is part of the California Environmental Protection Agency, administers the Proposition 65 program, including evaluating current scientific information on substances considered for placement on the Proposition 65 list.

California’s Proposition 65 has resulted in widespread litigation, and has put a burden on businesses in and outside of California.  Governor Jerry Brown has talked about reforming Proposition 65, but there has been little progress at any real change.  We have represented clients in Proposition 65 enforcement actions, and have been following the Proposition 65 reform efforts.

OEHHA issued a pre-regulatory proposal to address two issues the agency has identified:  (1) Making more information available to the public in the warnings that are provided; and (2) giving businesses greater flexibility and certainty in terms of the warnings it provides. OEHHA’s proposed changes are substantial and there is significant concern these changes will result in increased litigation and a greater burdens on business for compliance with Proposition 65.

The pre-regulatory proposal is focused on revising the portion of the Proposition 65 regulations related to what qualifies as a “clear and reasonable warning,” and does not address more foundational issues with the regulations related to when a product causes an exposure to a Proposition 65-listed chemical that requires a warning.  Key components of the regulatory proposal are:

·         The creation of an OEHHA website that will be listed in all warnings, and the imposition of a requirement that companies provide  OEHHA information regarding products, occupational or environmental exposures that will be posted on the website to allow public access to greater information regarding particular exposures.

·         A list of chemicals that must be specifically listed in a Proposition 65 warning if there is an exposure to that chemical.  The list includes mercury, lead, arsenic, cadmium, phthalates, and chlorinated Tris among others.  OEHHA stated that its goal in creating this list was to keep it short, choose chemicals that are familiar to the public, and chemicals that have frequently been involved in Proposition 65 litigation.

·         The proposed changes in the regulations would affect the applicability of the warning requirements, the methods of warning and the content of warnings including changes to what has been considered a “safe harbor warning.”  For example, the consumer product warnings must now include an international health hazard symbol, the term “Warning,” and a statement that the product “will expose” a consumer to a chemical known to cause cancer or birth defects.

 The proposal is at the pre-regulation stage, and OEHHA is soliciting input from stakeholders to improve the proposed regulations. At yesterday’s workshop with stakeholders we identified a number of concerns/issues with the regulatory proposal that were echoed by various industry groups .  The following are some of the concerns/issues:

1.       It is unclear how the proposal will create greater flexibility and certainty for businesses, and as currently proposed the regulatory changes could significantly increase the burdens on business for compliance with Proposition 65.  In addition, the proposal could result in more “gotcha lawsuits” as it will  increase the likelihood that inadvertent errors or minor deviations from the new requirements could trigger Proposition 65 notices of violation, and then lawsuits by private bounty hunter groups.

2.       The requirement that manufacturers, distributors and others post product and chemical exposure information to an OEHHA website will likewise increase the burden on businesses and create new opportunities for litigation.  OEHHA believes the increase in tailored warnings provided through numerous trade associations will help with compliance and decrease the burden on individual businesses or other public establishments.

3.       There will continue to be significant burdens on retailers, not just manufacturers and distributors. Some stakeholders have suggested that Importers be added to the list of businesses that must provide the Proposition 65 warnings given the extensive manufacturing that occurs outside the United States.

4.       The proposed warning that a product “will expose” a consumer to a cancer causing chemical or reproductive toxicant is concerning.  This can be misleading to a consumer compared to the current warning which states that the product contains a chemical known to the state to cause cancer or reproductive toxicity.  Also, this change in language has product liability and litigation related consequences.

5.       The emphasis in the warning on an exposure does not account for differences in the use of a product by a consumer including the manner and time of use. And, the use of the international hazard symbol along with new warnings also is misleading because the symbol is reserved for actual known health hazards.

6.       There are potential conflicts and inconsistencies between the proposed warnings and federal regulations (e.g. OSHA, FDA).  OEHHA believes it has addressed this concern, but we and industry representatives disagree.

7.       Another concern is how a business could go about removing its products from the OEHHA created website once a product was reformulated.  OEHHA said that the business could just provide OEHHA with notice, but we are concerned that there is no formal procedure in place.

8.       OEHHA is inviting specific comments and input on the proposed regulations. It is interested in “good warning language,” and in expanding “tailored warnings” to include warnings that have been agreed to in Consent Decrees.

We will monitor OEHHA’s proposed changes to Proposition 65 at additional workshops.  Extensive  comments will continue to be filed with OEHHA before it starts the formal rule-making process. For additional information or to submit comments for your business or industry group, please contact us.

The specific OEHHA regulatory proposal can be accessed at:  http://oehha.ca.gov/prop65/law/ Office of Environmental Health Hazard Assessment.