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2017 Ends with Flurry of Proposition 65 Activity

On both the regulatory and the enforcement sides, December 2017 was marked by significant Proposition 65 activity. On the regulatory side, the California Office of Environmental Health Hazard Assessment (OEHHA) finalized amendments to the new warning regulations and issued guidance interpreting the new regulations on internet and catalog warnings. The agency also listed new chemicals, proposed a warning level, and issued a Safe Use Determination.

And the holiday season had no significant slowing effect on the issuance of Notices of Violation: 185 NOVs were served in December. In a significant development, key players in the chocolate industry have entered into a settlement resolving As You Sow’s claims regarding alleged exposures to lead and cadmium in chocolate products.

Regulatory activity

On December 6, 2017, OEHHA announced its adoption of amendments to the new Proposition 65 warning regulations. Some of the amendments are non-substantive. For example, OEHHA has discarded the use of the phrase “on-product” to describe the shorter version of the safe harbor warning (Section 25603(b)), and now uses the reference “short-form” warning. However, some amendments will have an impact on how warnings are provided. For example, the text for retailer notices required for safe harbor furniture warnings (found at Section 25607.13(a)(2)(B), and required in addition to safe harbor warnings on or affixed to furniture) must include the phrase “cancer and/or birth defects or other reproductive harm” rather than “cancer or birth defects or other reproductive harm.” (Emphasis added.) This amendment is sure to confuse, as the text for the safe harbor warning text to be placed on or affixed to furniture is “cancer or birth defects or other reproductive harm.” (Emphasis added.) Businesses should carefully review the amended regulations to make sure that they understand their effects on the way safe harbor warnings should be provided.

OEHHA also has issued guidance on the new warning regulations’ requirements for internet and catalog warnings. Among other things, OEHHA clarifies that the “electronic device or process” safe harbor method of transmitting warnings (Section 25602(a)(2)) does not encompass website warnings. Rather, internet warnings are required in addition to using one of the four enumerated safe harbor methods of transmitting warnings described in Section 25602(a)(1)-(4). In other words, internet warnings alone are not a safe harbor method of providing warnings.

In other regulatory actions, OEHHA listed chlorpyrifos and n-hexane as reproductive toxicants pursuant to the State’s Qualified Experts listing mechanism, and listed vinylidene chloride as a carcinogen via the Labor Code listing mechanism. The agency also has proposed a No Significant Risk Level (NSRL) of 0.70 micrograms per day for the listed carcinogen bromochloroacetic acid. The deadline for comments on the proposed NSRL is February 12, 2018.

Finally, OEHHA issued a Safe Use Determination for Diisononyl Phthalate (DINP) in Interface Glasbac®and Glasbac®RE Modular Carpet Tiles. Such tiles do not require Proposition 65 warnings for DINP if they contain DINP only in the structural backing layer, with the following concentration limits:  the concentration of DINP in the backing layer is no more than 9% by weight in GlasBac®RE modular carpet tiles and 16.06% by weight in GlasBac® modular carpet tiles.

Private enforcement activity

The 185 Notices of Violation served in December reveal few surprises. Center for Environmental Health (CEH) is alleging exposures to furfuryl alcohol in potato snack foods; furfuryl alcohol was listed as a carcinogen in September 2016. In a separate NOV, CEH is alleging exposures to bisphenol A in thermal paper. Community Science Institute is pursuing claims of lead exposures in toddler nutrition products. This private enforcer, relatively new to Proposition 65, also has issued NOVs involving acrylamide in foods. Ecological Rights Foundation continues to pursue claims of carbon monoxide exposures from charcoal grills and starters. Evelyn Wimberley is pursuing claims of exposures to soots, tars and mineral oils from charcoal and smokers. Phthalates and lead remain the most popular targets, including in product packaging.

In a significant development, nine key players in the chocolate industry settled Proposition 65 claims asserted by As You Sow that chocolate products expose individuals to lead and cadmium at levels requiring warnings. The settlement has an opt-in provision, intended to establish a new industry standard for lead and cadmium in these products, by which other chocolate product producers and retailers may participate in the settlement. Notably, the settlement establishes a committee of experts jointly chosen by the initial settling parties; the committee will evaluate the sources of lead and cadmium in chocolate products, recommend feasible ways to reduce such levels, and recommend lead and cadmium levels above which warnings will be required. See GLO’s recent blog to find out more.

In the meantime, 225 days to go….

The countdown continues to August 30, 2018, when the new Proposition 65 safe harbor regulations come completely into effect.

 

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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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