On January 25, 2016, the California Office of Environmental Health Hazard Assessment finalized its Proposition 65 website regulation, publishing a Notice of Adoption – New Section 25205, Proposition 65 Lead Agency Website. Under the new regulation, OEHHA will develop and maintain a website to provide public information regarding exposures to Proposition 65-listed chemicals for which warnings are being provided. The regulation becomes effective on April 1, 2016, though it is not clear at this time whether the website will operational by then.
The website will include links to information compiled by other agencies, including the Food and Drug Administration and the National Institutes of Health. But the controversial component of this regulation is the requirement for businesses to respond to OEHHA requests for extensive information regarding Proposition 65 chemicals in their products. Such information includes, for example, the concentration of the chemical in the product and the extent of exposures to such chemicals.
This regulation is separate from OEHHA’s proposed revisions to the Proposition 65 warning regulations, the public comment period for which just ended on January 25, 2016. In addition, the website regulation is explicit that a business’s failure to comply with it shall not be deemed to constitute a violation of the Proposition 65 warning requirement. However, the precise interplay between the new warning regulations (if and when they are finalized) and the information requirements of new Section 25205, particularly with respect to enforcement actions, is not predictable — but likely will cause more litigation.