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OEHHA Proposes Clarifications to the Definition of “Actual Knowledge”

California’s Office of Environmental Health Hazard Assessment (OEHHA) recently proposed amendments to the warning regulations that became effective August 2018. These proposed amendments are intended to address some uncertainties regarding compliance in specific areas.  One of those areas is the scope of “actual knowledge” that a retail seller must have to bear the primary burden (vis-à-vis suppliers) of providing consumer product exposure warnings. As such, the changes relate to the definition of actual knowledge under Section 25600.2(f) to satisfy the criteria of Section 25600.2(e)(5), which imposes the primary to warn on the retailer under specified circumstances.

Under the current regulations, a retail seller is obligated to provide warnings to consumers when the seller “has actual knowledge of the potential consumer product exposure requiring the warning, and there is no manufacturer, producer, packager, importer, supplier, or distributor of the product who: (A) is a person ‘in the course of doing business’ under Section 25249.11(b) of the Act, and (B) has designated an agent for service of process in California, or has a place of business in California.”  “Actual knowledge” means specific knowledge of the consumer product exposure, which may come from “any reliable source.”

The proposed amended definition of “actual knowledge” seeks to clarify the degree of specificity needed for “actual knowledge.” The retail seller’s actual knowledge would need to be of “sufficient specificity for the retail seller to readily identify the product the requires a warning.”  Second, the proposed change curbs the group of people whose knowledge of a consumer product exposure can be attributed to the retail seller.  As such, the “knowledge” implied in this requirement must be possessed by either an “authorized agent” for the entity or an employee whose knowledge may reasonably be attributed to the retailer.  This amendment aligns the principle of agency under Prop 65 with that of existing law in which knowledge acquired by an agent or employee may be imputed to the business.

The clarifications, as proposed, would be a welcomed development for retailers who have been uncertain about their obligation to have “actual knowledge.”

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 Prop 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.