On January 12, 2015, the California Office of Environmental Health Hazard Assessment posted on its website a formal regulatory package revising the Proposition 65 warning regulations and creating a Proposition 65 website. This formal regulatory package is expected to be published by January 16, 2015 in the California Regulatory Notice Register for formal notice and comment. Written comments must be submitted by April 8, 2015, and OEHHA will hold a public hearing on March 25, 2015.
With pressure from the Governor’s office to “fix” Proposition 65, OEHHA’s proposed revisions are intended to achieve the goals of providing more meaningful warnings to consumers and of reducing unnecessary litigation. With respect to the latter goal, the proposed revisions likely will increase, rather than decrease, enforcement actions.
Among the key proposed provisions:
- The proposed regulations would retain the current safe harbor approach, meaning that a business may use any text or method of transmission to provide a Proposition 65 warning, but only by complying with the regulatory safe harbor warning text and transmission methods will a business be assured that a warning is “clear and reasonable” as a matter of law. However, in contrast to the current regulations, OEHHA’s latest proposal provides no guidance at all on what generally would be deemed to be “clear and reasonable.”
- The proposed regulations would require a business to identify the specific chemical being warned for, if the chemical is identified in the regulations as one of 12 specifically requiring such identification. This requirement would appear to potentially open a new category of enforcement actions — i.e., the “bad warning” cases (in which the warning being provided allegedly did not include all chemicals required to be warned for), in addition to the “no warning” cases.
- The safe harbor warning text for a consumer product exposure would be “This product can expose you to a chemical….” rather than the current “This product contains a chemical…”
- Proposition 65 warnings would be required to include the symbol of a black exclamation point enclosed within a yellow triangle. The symbol would have to be in color unless the label is in black and white.
- Businesses may use a more truncated warning on product labels, using the symbol and the words “Cancer,” “Reproductive Harm,” or “Cancer and Reproductive Harm,” depending on the chemical(s) being warned for. Such truncated warnings, which need not identify any specific chemicals, would be subject to specific font size requirements.
- If words on the label are in other languages, then the Proposition 65 warning must also be translated into those other languages. Similarly, environmental exposure warnings must be translated into languages ordinarily used by the business to communicate with the public.
- All warnings must include the following URL: www.P65Warnings.ca.gov/product (or www.P65Warnings.ca.gov/environmental) which will direct members of the public to the new Proposition 65 website.
- OEHHA will establish a Proposition 65 website in which to post information about warnings being provided. Upon request by OEHHA, businesses will be required to provide information about their products and warnings for OEHHA to post, including anticipated routes and level of exposure to the chemical being warned for.
Entities subject to Proposition should review OEHHA’s proposal carefully, understand its implications on their business operations and submit appropriate comments to OEHHA.