The State of California has Proposed Significant and Controversial Changes to its Consumer Product Chemical Warning Regulations

April 30, 2014Alerts

Manufacturers, distributors, retailers and importers in all industries should pay close attention to proposed amendments to California’s Proposition 65 consumer product warning regulations by the California EPA’s Office of Environmental Health Hazard Assessment (“OEHHA”). Written comments regarding the proposals are due to OEHHA by 5:00 p.m., Friday, June 13, 2014. Additional opportunities for public input will be available if OEHHA decides to formally adopt the proposed amendments.

All products (even food and beverages) sold to consumers in California that contain one or more chemicals on the Proposition 65 list of “chemicals known to the State of California to cause cancer or reproductive toxicity” are potentially subject to Proposition 65 regulation.

OEHHA regularly adds new chemicals to the Proposition 65 list, so businesses should monitor the list and Proposition 65 developments if there are chemicals in their products that could be subject to future regulation.

OEHHA is proposing to require that Proposition 65 consumer product warnings contain this hazard pictogram: , the word “WARNING” in bold and all capital letters, and the following phrase: “This product will expose you to a chemical known to the State of California to cause cancer [or birth defects or other reproductive harm].

The current required warning is: “WARNING: This product contains a chemical known to the State of California to cause cancer [or birth defects or other reproductive harm].”

Companies whose products require warnings also would need to report to OEHHA detailed product chemical exposure information, which OEHHA is proposing to make available to the public on the Proposition 65 website. This would increase the cost to comply with Proposition 65, and it could further expose companies to frivolous private enforcement litigation or to product liability and personal injury lawsuits.