Mike Rogge

Prop 65 warnings saga nears end

By Mike Rogge

Capitol Update, July 7, 2016 Share this on FacebookTweet thisEmail this to a friend

A little over two years ago, Governor Jerry Brown announced that he wanted to make Proposition 65 warnings less susceptible to frivolous lawsuits and at the same time more useful to consumers. Since Proposition 65 was passed by a state ballot measure in 1986, any legislative fix would require a two thirds vote. It was quickly obvious that the Legislature was not going to be able to pass legislation in this regard. With environmentalists and the trial attorneys firmly ensconced on one side and business and industry on the other, the likelihood of improvements quickly evaporated.

However, CalEPA’s Office of Environmental Health Hazard Assessment (OEHHA) announced that they would amend their regulations to make the warnings more meaningful and embarked on numerous workshops, hearings and comment periods to both create a website with relevant information and modify the current warnings. Industry groups have maintained that the amendments would undermine statutory goals and increase bounty hunter litigation against companies, in contradiction to the vision of the Governor.

The American Chemistry Council (ACC) claims that OEHHA amendments propose limitations on a manufacturer’s right to include “properly substantiated, truthful, and accurate information, including contextual product use, benefit and risk information that helps consumers make informed choices” on a product, near a product, in a product manual, at a facility or elsewhere in violation of the First Amendment. 

Inside CalEPA, a weekly non-CalEPA newsletter, recently referred to the ACC’s comment as “potentially signaling a legal challenge against the agency if it finalizes the rule changes.”

On the other hand, attorneys representing environmental organizations have urged OEHHA to strengthen the proposal accusing OEHHA of watering down the safe harbor warning language and removing the size minimums for certain warnings.

Earlier this year, OEHHA had to reinitiate the process because they had failed to meet the one-year administrative deadline to finalize the rule. Final comments on the last set of revisions to the proposed controversial regulatory amendments were posted in early June. It is doubtful that any significant changes will be made following the conclusion of the latest comment period. More info here.

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