The California Office of Environmental Health Hazard Assessment’s recent proposal to overhaul the Proposition 65 warning regulations has received an overwhelming negative response from the business community. One submission alone, from a California Chamber of Commerce coalition, represented the views of over 130 trade organizations and companies expressing deep concerns about the cost and difficulty of compliance with the proposal’s warning requirements and the resulting increased risk of frivolous enforcement actions.
GLO previously reported on OEHHA’s Proposition 65 warning regulation proposal. OEHHA’s stated goals are to promote more meaningful Proposition 65 warnings and reduce frivolous enforcement actions. Yet, as the business stakeholders pointed out in their comments, the proposal would have the opposite effect. Key problematic aspects of the proposal include:
- Requirements for a business to submit certain information to OEHHA about the warnings being provided, including chemical exposure levels and instructions on avoiding exposures, all of which would be tied to the “clear and reasonable” warning requirement;
- Revising the warning language from “This product [or area] contains a chemical known to the State of California to cause….” to “This product will expose you to chemicals known to the State of California to cause….” and “Persons in [location] will be exposed to chemicals known to the State of California to cause….” The term “will expose” incorrectly assumes that knowledge of exposure is attainable with absolute scientific certainty;
- A requirement for warnings to identify the specific chemical(s) that is the subject of the warnings, if the chemical is one of 12 specified by OEHHA (including lead, phthalates, acrylamide and mercury). OEHHA has not established any objective criteria for separating these chemicals from the 900 chemicals on the Prop 65 list;
- Requiring most warnings to include the GHS pictogram for health hazard, which would convey an alarming message regarding potential harm that is inconsistent with the extremely low exposure levels that trigger warnings; and
- Numerous vague and ambiguous terms, each of which will be disputed in litigation.
As most business stakeholders pointed out in their comments, one of the key difficulties with Proposition 65 compliance is determining the “when” to warn, i.e., determining the level at which exposure to a chemical requires a warning. That determination is fraught with pitfalls, each of which is exploited by private enforcers. This scientific uncertainty and accompanying litigation risk in turn compel businesses to provide warnings, as the law permits, even if their exposure calculations would not compel them to provide warnings.
OEHHA’s proposal only addresses the “how” to warn, not the “when” to warn. Without addressing the foundational compliance question of when to warn, OEHHA’s goals of promoting meaning warnings and reducing frivolous litigation will continue to be out of reach.
The agency intends to publish a formal rulemaking package possibly as soon as this summer. It appears that the ultimate regulatory package likely will be a revised version of this draft proposal — and it is equally likely that, even revised, the ultimate regulatory package will contain provisions that the business community will not be able to tolerate. Companies subject to Proposition 65 must be sure to monitor developments and make their voices heard by submitting comments on the anticipated formal rulemaking.