On September 4, 2015, the California Office of Environmental Health Hazard Assessment published a revised proposal for a Proposition 65 website. This follows OEHHA’s January 16, 2015 proposal, on which the agency received numerous public comments. Comments on the September 4, 2015 revised version of the proposal are due by September 21, 2015.
OEHHA representatives in the past have stated that they are routinely inundated with inquiries from the public about Proposition 65 warnings being conveyed by businesses. OEHHA’s website proposal is intended as a vehicle to provide members of the public with such information. The proposal authorizes OEHHA to require businesses to provide the agency with information such as the concentration of the listed chemical in a product, the estimated level of exposure to the chemical and anticipated routes of exposure. The information provided, along with generally available information such as links to the Food and Drug Administration’s and other agencies’ websites, will be posted on the OEHHA website.
Among the recent proposal amendments:
- A clarification of the OEHHA website’s function, by striking the original proposal’s provision that it will be an interactive web-based portal to both collect and display the information provided;
- Clarification that a business must respond to OEHHA’s request for information within 90 days of such request;
- The authorization for trade associations to respond to requests for information directed to member companies; and
- An explicit provision that information subject to a legal privilege does not need to be submitted.
Prior public comments challenged OEHHA’s authority to mandate the submission of information by businesses. OEHHA has responded by stating its reliance on Government Code sections 11346.5(a)(11) and 11346.3(d). Those sections, part of the California Administrative Procedure Act, set forth procedural requirements for proposed regulations purporting to require “reports” from businesses. They do not address the substantive question of whether Proposition 65 confers the requisite authority for OEHHA to issue mandatory information requests. It will remain to be seen whether a court challenge will be brought to decide the question.