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September 2017

Should Your Proposition 65 Consent Judgment Be Modified?

By Ann Grimaldi and Jennifer Karpinski Singh If your business is currently using Proposition 65 warnings pursuant to a consent judgment, take heed: You may need to modify the judgment to address business, not legal, pressure to use the new warnings recently established under the new safe harbor warning regulations that go into effect August 30, 2018. California law has long required businesses to provide clear and reasonable warnings prior to exposing individuals to chemicals placed on the Proposition 65 list. However, recent shake-ups in what defines “clear and reasonable” are changing the liability landscape for businesses selling products in, or destined for, California. On August 30, 2016, the Office of Environmental Health Hazard Assessment (OEHHA) adopted new safe harbor warning regulations, which become effective and enforceable on August 30, 2018. As of that date, the safe harbor warnings that have been in place since 1988 will no longer provide …Read More

AB 1583 Passes Senate and Assembly – But Will It Promote Transparency in Proposition 65 Private Enforcement?

On September 14, 2017, the California Senate and Assembly passed AB 1583, and Governor Brown is expected to sign it into law. This bill is intended to promote transparency in Proposition 65 private enforcement.  To be sure, private enforcement is in dire need of increased transparency. However, whether this bill will be robust enough to achieve that goal — that is uncertain. The bill contains three main components: It will make the basis for the Certificate of Merit discoverable to the public, subject to legal privileges. It will require the Attorney General to formally communicate to the private enforcer and the alleged violator when a claim is determined to have no merit. It will require the Governor’s Office of Business and Economic Development (Go-Biz) to post information about Proposition 65 on its website. Making the Certificate of Merit Discoverable Under current law, a private enforcer is required to serve a …Read More

OEHHA Provides Guidance on Safe Harbor Warnings for Lead Under New Regulations

The Office of Environmental Health Hazard Assessment (OEHHA) has provided guidance on how to provide warnings for lead under the new safe harbor warning regulations in Title 27, California Code of Regulations, sections 25601, et seq. This guidance, provided in response to Grimaldi Law’s request for interpretation, clarifies that businesses may use the term “lead” in a combination warning, i.e., a warning addressing both the cancer and reproductive harm endpoints, as set forth in Section 25603(a)(2)(D) of the new safe harbor warning regulations – notwithstanding the fact that the formal identification for lead as a carcinogen is “lead and lead compounds.”‘ Background Proposition 65 requires businesses with 10 or more employees to provide a “clear and reasonable warning” before exposing individuals to a Proposition 65-listed chemical, if the exposure to that chemical is above its regulatory warning level. Since 1988, the Proposition 65 regulations have set forth the warning language …Read More