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OEHHA Proposes Overhaul of Prop 65 Warning Regulations — But Will It Help or Hurt?

On March 7, 2014, the California Office of Environmental Health Hazard Assessment published a pre-regulatory draft of new Proposition 65 warning regulations.  The draft represents a complete overhaul of the decades-old regulations and is intended to address their numerous shortcomings.  However, the draft regulations, if finalized in their current form with their burdensome requirements and ambiguities, likely will create more problems than they solve.  Although the draft is not a formal rulemaking, the public is invited to comment.  Businesses and their trade organizations should be sure to present their position on the package before the May 14, 2014 deadline.

Under the proposal, the changes would not affect requirements imposed on businesses that are parties to settlements approved by a court before January 1, 2015.  Parties to out-of-court settlements apparently would not enjoy similar protection.

Among OEHHA’s many proposed changes:

  • A requirement for businesses providing Prop 65 warnings to submit extensive warning-related information to OEHHA, to be posted on the agency’s website.  This information includes
    • the specific product(s) for which the warning is provided
    • the names of all the chemicals for which the warning is provided
    • the anticipated routes of exposure
    • reasonably available information concerning the anticipated level of exposure to the chemical(s), and
    • information a person can take to minimize or eliminate exposure
  • A requirement to use the Globally Harmonized System of Classification and Labeling of Chemicals symbol for health hazard even for consumer product exposures                           Health Pictogram
  • A requirement for all Prop 65 warnings to use the phrase “will expose you to a chemical [or chemicals]” rather than “contains a chemical [or chemical]”
  • A requirement for a warning to specifically name each chemical that is the subject of the warning, if the chemical one of 12 chemicals identified in the regulations (like lead, mercury, acrylamide and phthalates)
  • An expansion of the definition of “occupational exposure” that may have significant consequences for entities doing business in California
  • A requirement for occupational exposure warnings to specifically reference cancer or reproductive toxicity, even if compliance with the federal or California Hazard Communication Standard would not require such a reference
  • Specific requirements for certain types of exposures, e.g., exposures to nitrous oxide and mercury via dental procedures

Rather than providing the kind of guidance that helps businesses avoid enforcement lawsuits, OEHHA’s proposed changes create innumerable additional compliance pitfalls that Prop 65 enforcers will exploit.  The proposed changes also may have serious product liability implications. Businesses affected by Proposition 65 should examine this pre-regulatory package proposal closely to evaluate its potential impacts on their operations.

OEHHA will hold a public workshop on April 14, 2014 in Sacramento and written comments are due by May 14, 2014.  The pre-regulatory package is located at http://www.oehha.ca.gov/prop65/warnings/030714warningworkshop.html.

Ann Grimaldi

About Ann Grimaldi

Ms. Grimaldi maintains a diverse environmental law practice focusing on chemical and product regulation and litigation defense. Her practice areas include Proposition 65, California's Safer Consumer Products Regulations, California's Rigid Plastic Packaging Container Act and the federal Toxic Substances Control Act. Ms. Grimaldi graduated from the University of California Hastings College of the Law magna cum laude and holds a Bachelor of Science Degree in Bacteriology from University of California, Davis. Prior to attending law school, she worked as a research assistant in laboratories at the University of California, San Francisco Cancer Research Institute and at the University of California, San Francisco School of Medicine.

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