New Prop 65 warning regulations released

By CMTA Staff

Capitol Update, Jan. 29, 2015 Share this on FacebookTweet thisEmail this to a friend

On January 12th, the Office of Environmental Health Hazard Assessment (OEHHA) issued their “final draft” of proposed changes to regulations concerning Proposition 65 warnings and announced the commencement of formal rulemaking. This draft follows a previous pre-regulatory draft and workshops where industry voiced significant opposition to a number of the changes that were being contemplated.

The impetus for the OEHHA review and recommendations was an announcement by Governor Jerry Brown in May of 2013 that he wanted to see something done to minimize frivolous shake-down lawsuits and make the warnings more meaningful. Since Proposition 65 became law through the initiative process, a two-thirds majority of the legislature would have to approve any changes that would positively impact the lawsuit situation. Hence, nothing significant happened legislatively to alleviate this problem. On the other hand, OEHHA, as the implementing agency, announced that they felt that they could unilaterally modify what is required from a warnings standpoint.

The major changes are:

1.     Warnings would be required to be provided to consumers prior to purchase, rather than prior to potential exposure.

2.     Warnings would say that the product “can expose you to a chemical” rather than “the product contains a chemical.”

3.     Any interested party can request OEHHA to adopt a warning method or content specific to a product. This opens the door for plaintiffs to demand specific warnings on certain products.

4.     Warnings must include a graphic of a black exclamation mark within a yellow triangle.

5.     Warnings would be required in multiple languages if a product label or sign uses different languages.

6.     Previously litigated court approved settlements are not recognized. To be fair, from recent discussions, it appears that OEHHA did not intend this to be the case, and they will very likely modify the language to eliminate this outcome. However, at the present time, it is a concern.

7.     Twelve common chemicals (acrylamide, arsenic, benzene, cadmium, carbon monoxide, chlorinated tris, formaldehyde, hexavalent chromium, lead, mercury, methylene chloride and phthalates) must be identified in the warning if exposure to that chemical is reasonably anticipated to occur. We see this as opening the door to a new litigation as well as to the possibility of additions to this list necessitating further changes to labels.

8.     Warnings would also be required to include the URL for a website maintained by OEHHA which would contain more detailed information. Businesses, upon request, could be required to provide the detailed product information.

Interestingly enough, in their Initial Statement of Reasons, OEHHA comes to the conclusion that these regulations "will not have a significant statewide adverse economic impact directly affecting businesses, including the ability of California businesses to compete with businesses in other states,” and further concluded that the regulations “do not impose any new requirements upon private persons or business…" Many in the business community beg to differ.

The written public comment period is open now through 5:00 pm on April 8th  and a public hearing will be held on March 25th to take oral comments. More information here.

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