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OEHHA Proposes Amendment to Proposition 65 Safe Harbor Warnings for Pesticides

The California Office of Environmental Health Hazard Assessment is proposing to amend the Proposition 65 warning regulations to allow the use of the signal word “Attention” or “Notice” for warnings appearing on pesticide labels. Comments on the proposed amendment must be submitted no later than June 11, 2018.

The proposed amendment would address a longstanding difficulty in providing Proposition 65 safe harbor warnings on pesticide labels. Pesticides are highly regulated at both the federal and state level. The scope of regulatory requirements includes restrictions on what can be stated on product labels. Both the US Environmental Protection Agency (at the federal level) and the Department of Pesticide Regulation (at the California level) must review labels for compliance with their respective regulatory requirements, and pesticides are prohibited from being sold unless both US EPA and DPR have approved the product labels.

For years, entities seeking agency approval for their pesticide labels have encountered resistance to, and outright denial of, Proposition 65 safe harbor warning statements on their labels because of the use of the word “WARNING.” In the pesticide regulatory scheme, that signal word can only be used in specific circumstances and, more often than not, those circumstances are not the same as those triggering a Proposition 65 warning.

Thus, companies have been stuck, not being able to use the Proposition 65 safe harbor warning and therefore becoming vulnerable to a Proposition 65 warning claim. Just as bad, they are frequently unable to negotiate Proposition 65 settlements or to comply with settlements that they have finalized. The Proposition 65 private enforcement community, many members of which insist on the use of the signal word “WARNING” for pesticides, have not been particularly moved by these difficulties. A company’s ability to use a different signal word for a Proposition 65 safe harbor warning will go a long way to addressing these challenges.

OEHHA’s interest in this issue, of which it has been aware for many years, perhaps may not be entirely altruistic. The glyphosate listing and related controversy has brought these labeling problems to a head, with companies again encountering outright denial by US EPA of proposed glyphosate product labels bearing the safe harbor warning. OEHHA’s proposed amendment of the safe harbor warning potentially would enhance its position in the ongoing glyphosate litigation.

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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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