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Clarifying Amendments Proposed for Sellers Under Proposition 65

California’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed amendments to clarify the Proposition 65 regulations that became effective on August 30, 2018. OEHHA determined that the changes were necessary after numerous comments from stakeholders.

The new warning regulations require that manufacturers, producers, packagers, suppliers and distributors of consumer products assume primary responsibility for complying with the regulations, while retailers are obligated to place exposure warnings on products only in limited situations.  Not surprisingly, the updated regulations have caused some confusion among various parties regarding their responsibilities. Now, the recently proposed amendments by OEHHA seek to simplify and better explain each of the parties’ obligations under the statute.

The latest clarifications explain how upstream suppliers may discharge their warning obligation if they do not want to label their products. In the original warning regulations effective August 2018, such suppliers could provide notifications, meeting specified requirements, to the authorized agent for retailers. However, a significant proportion of suppliers do not have direct business relationships with retailers, and thus such suppliers would not be able to implement this notification procedure. The proposed amendment addresses this problem: such suppliers may provide the notification to either the authorized agent of their direct customer or the authorized agent for the retailer accepting the product. Similarly, the required confirmation of receipt of the notification may be provided either by the direct customer or by the retailer. Further, if the direct customer or retailer has not identified an “authorized agent,” then the notification may be sent to the business’s legal agent for service of process. With these clarifications, more suppliers may take advantage of this notification procedure to discharge their warning obligations (although they may still be asked by their distributors and retailers to label their products with a warning).

The proposals further elaborate on the requirement to provide consumer product exposure warnings when the retail seller has “actual knowledge” of an exposure under Section 25600.2(f). The regulations state that a retailer must provide Proposition 65 warnings for products where it has “actual knowledge of the potential customer product exposure requiring the warning” and there is not another party in the chain who is required to comply with the Proposition 65 warning requirement. The proposed amendment makes clear that the term “actual knowledge” means that the retailer has specific enough knowledge so that it is able to “readily identify the product that requires a warning.” The proposed amendment also clarifies whose knowledge may be attributed to the retailer: Either an “authorized agent” as identified in the statute or an employee in a position of authority can have the “actual knowledge” triggering the retailer’s duty under this provision. In that regard, the proposed amendment is intended to mirror the legal principles of agency to attribute the knowledge of an individual to the organization. In other words, the “actual knowledge” of, say, a cashier would not trigger a duty to warn for the retailer.

The comment period for the proposal, originally set to end on December 31, 2018, was extended to January 11, 2019 with a hearing held on January 3, 2019.

Grimaldi Law Offices has been advising clients for over 20 years on chemical and product law. For knowledgeable advice and in-depth analysis on your Proposition 65 compliance obligations, contact Grimaldi Law Offices at (415) 463-5186 or email us at [email protected].

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.