On November 27, 2015, the California Office of Environmental Health Hazard Assessment released a new Proposition 65 warning proposal and formally withdrew its January 16, 2015 proposal. OEHHA has scheduled a public meeting on the new proposal for January 13, 2016. Public comments on the new proposal must be submitted no later than January 22, 2016.
Like the January 2015 proposal, the November proposal describes safe harbor Proposition 65 warnings. The current proposal retains key elements from the earlier version. For example:
- Safe harbor warnings other than for food will require the use of a symbol (an exclamation point in an equilateral triangle).
- The safe harbor warning must state, for consumer product warnings, that the product “can expose” the individual to a listed chemical, rather than “contains” the listed chemical as per current regulations.
- Retailers are deemed to not be required to provide warnings absent specified circumstances.
The November proposal addresses some of the criticisms that OEHHA received on its earlier proposal. For example:
- OEHHA undertook an economic analysis of the impact of its proposal, as required by the California Administrative Procedures Act. OEHHA’s January 2015 proposal had assumed that there would be no economic impact at all.
- OEHHA undertook a survey assessing the effectiveness of existing and proposed Proposition 65 safe harbor warnings. Many stakeholders had criticized the January 2015 proposal for making unsupported assumptions about how Proposition 65 warnings are perceived.
- OEHHA has discarded the “list of 12” provision. The January 2015 proposal would have required safe harbor Proposition 65 warnings to identify the specific chemical being warned for, if the chemical was among 12 identified by OEHHA as requiring specific identification (including certain heavy metals, “phthalates” generically, and chlorinated tris).
However, significant ambiguities remain. For example:
- The current proposal would require safe harbor warnings to identify at least one chemical being warned for, but the proposed safe harbor language does not accommodate the ability to refer to other chemicals also at issue in a more generic way. See Section 25603 of the proposal. In other words, the safe harbor warning does not appear to allow businesses to use the following bolded language: “This product can expose you to chemicals, including [specific chemical]….” (Ironically, the warning examples used in OEHHA’s warning effectiveness survey included a generalized reference to “chemicals” along with a specific identification of just one or two chemicals, demonstrating that this approach would in fact be an effective means of providing warnings.) Thus, the current proposal would appear to require businesses to identify each and every chemical for which a warning is required, which, even if possible, may detract from the warning’s effectiveness. This creates a Catch 22 situation:
- With global supply chains ever expanding, it may not be possible for businesses to definitively determine exactly what chemicals may be present in their products. This is particularly problematic with respect to impurities and byproducts, which Proposition 65 (unlike other regulatory programs) encompasses.
- If businesses deviate from the safe harbor language to address other additional chemicals in a generalized way, they may be deemed to not be covered by the safe harbor protections.
- If they do not include phrasing to encompass other chemicals in a generalized way, they may be sued if an enforcer concludes that other chemicals should have been included in the warning.
- The current proposal allows a business to provide “supplemental information” about a warning, but prohibits such information if it contradicts the warning. Although superficially this may make sense, OEHHA’s example of prohibited supplemental information highlights how this prohibition could directly impair a business’ First Amendment right to provide truthful and not misleading information. See the Initial Statement of Reasons at page 12. This provision, if finalized as proposed, will surely lead to litigation about commercial First Amendment rights.
These and other ambiguities must be addressed. That said, the fundamental problem with Proposition 65 is not what the warnings should or should not say but the lack of clarity about when warnings need to be provided in the first place. OEHHA’s current proposal, as in its earlier version, fails to address that key problem.