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OEHHA Proposes Amendment to Proposition 65 Notice Regulations

The California Office of Environmental Health Hazard Assessment has announced that it intends to amend the Proposition 65 notice regulation at Title 27, California Code of Regulations Section 25903(b)(2)(E) and Appendix A, to “clarify the content required in notices of violation served on alleged violators of Proposition 65.” Comments on the proposal are due by July 3, 2017 and may be submitted electronically, per the notice.

Under current regulations, a Proposition 65 Notice of Violation must include an Appendix A. Among other things, Appendix A must include a Special Compliance Procedure and Proof of Compliance Form, which alleged violators may use to resolve certain — and very specific — types of alleged Proposition 65 violations. The Special Compliance Procedure and Proof of Compliance Form became required after Proposition 65 was amended to include a special, streamlined, and low-cost way to resolve alleged violations involving:

  • An alleged exposure to alcoholic beverages that are consumed on the alleged violator’s premises;
  • An alleged exposure to a Proposition 65 listed chemical in a food or beverage prepared and sold on the alleged violator’s premises, if such exposure also meets other requirements;
  • An alleged exposure to environmental tobacco smoke caused by entry of persons in designated smoking areas; or
  • An alleged exposure to listed chemicals in engine exhaust in parking garages.

(See Health & Safety Code section 25249.7(k).) Exposures not falling under any of the above categories are not subject to the Special Compliance Procedure and related Proof of Compliance Form.

Since the vast majority of Proposition 65 Notices of Violation do not involve the exposures described above, requiring the Special Compliance Procedure and Proof of Compliance Form to accompany all Notices of Violation, irrespective of the nature of the alleged exposure, can create confusion on the part of notice recipients. Such notice recipients are surely disappointed once they find out that the claims being asserted against them are not subject to the streamlined and low-cost claim resolution process.

To avoid such confusion, OEHHA is proposing to move the Special Compliance Procedure and Proof of Compliance Form to a new Appendix B, clarifying that new Appendix B is to be included in a Notice of Violation only if the notice alleges exposures in one or more of the categories described above. The proposal will likely reduce the confusion that can result under the current regulations. However, it also places all of the burden on the alleged violator to evaluate the notice to determine whether the alleged exposures might, in fact, be subject to the streamlined, low-cost resolution process after all.

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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.