Prop 65 update

By CMTA Staff

Capitol Update, April 24, 2014 Share this on FacebookTweet thisEmail this to a friend

In May of last year, Governor Brown issued a press release to say he wanted to see action taken to curtail the frivolous lawsuits filed based on Proposition 65 and to make the warnings more meaningful to the general public. Unfortunately, such changes require a two-thirds vote from the legislature and the environmentalists and trial attorneys quashed the idea.

At the conclusion of those negotiations, Cal EPA’s Office of Environmental Health Hazard Assessment (OEHHA) announced that they felt that they already had the authority to move forward with making the warnings more meaningful without legislation. On March 7th, they released their “Pre-Regulatory Draft – For Discussion Purposes Only” (http://oehha.ca.gov/prop65/warnings/pdf/DraftWarningRegs030714.pdf)

On Monday, April 14th, OEHHA held a pre-regulatory workshop to explain and take comments on their proposal which would significantly change the content and the amount of information required on the warning.

OEHHA’s proposal is to abandon the safe harbor practice for a “one-size fits-all” approach that requires language like “will expose” rather than “may expose.” Lawsuits already settled would only protect the party named in the lawsuit, not others in the same industry. They would have to abide by the new warning requirements.

The workshop had to be moved mid-morning to a larger conference room at CalEPA due to the large number of business representatives who showed up to protest OEHHA moving forward unilaterally. Out of the packed room, there were only four commenters representing the trial attorneys and the environmental community. Manufacturers were present as well as retail establishments, the medical and dental representatives, realtors and apartment owners, attraction park managers, high tech and contractors.

The business community representatives expressed concerns about:

  1. protecting trade secrets,
  2. the cost and lack of clarification on the multiple language requirements,
  3. the added liability and workings of a proposed website for posting additionally required information, and
  4. the lack of scientific criteria for the selection of the 12 chemicals selected for disclosure.

The common message from every association was that, contrary to OEHHA’s intentions, the proposed changes will be very costly, increase uncertainty for business, and result in more opportunity for lawsuit abuse.

This process will play out over the next 14 months and will require a big push from the business community to avoid making poor public policy and having Prop 65 go from bad to worse. If nothing changes, manufacturers, distributors, and to a lesser extent, retailers, will have to know if their product has any trace of the 800 plus chemicals known by the State of California to cause cancer or reproductive toxicity, and to what extent the public using that product may be exposed to those risks. Expanded warnings will be required on everything, from parking garages to restaurant menus.

OEHHA staff intends to now meet industry by industry with the stakeholders to see if they can allay concerns. The comment period on this pre-regulatory proposal has since been extended from May 14th to June 13th. CMTA will be submitting comments. If your company has comments that they would like to have CMTA include, please send those to Mike Rogge at: mrogge@cmta.net

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