New Public Comment Period for California’s Proposed Changes to Proposition 65 Warnings — Update on Proposed Warnings Website

January 6, 2016Alerts

Proposed New Warnings

The California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed various changes to its Proposition 65 warning requirements since the original proposals it released in 2014. Although OEHHA has already modified the original proposals several times, it continues to propose significant changes. Examples of the current and proposed required carcinogen and reproductive toxicant consumer product warnings are shown below.

Manufacturers, distributors, retailers and importers who sell products in California could be impacted by these and other proposed changes. A public hearing on the new proposals will be held on Wednesday, January 13, 2016 at 10 a.m. in Sacramento. Written comments are due to OEHHA by 5:00 p.m. on Friday, January 22, 2016.

OEHHA has also proposed to create a new website on which it will post information about consumer product and other types of exposures to listed chemicals. Although OEHHA has also modified its original website proposal, controversial provisions remain in the current draft, some of which are listed below. OEHHA’s current draft has been pending since September 2015.

OEHHA proposes to post information from third parties on the website, yet it would provide a disclaimer that it cannot assure the accuracy of the third-party information.

Information OEHHA proposes to post on the website could affect public perception of consumer products containing listed chemicals, including food and beverages. If OEHHA were to post inaccurate information, businesses would bear the burden to show the information is inaccurate and to request corrections. OEHHA does not specify in its proposal the procedures businesses would need to follow to request corrections.

Businesses could be required to provide OEHHA with information in their possession about the products they manufacture, distribute or sell, such as specific concentrations of listed chemicals in the products and component parts, estimated routes of exposure, manufacturer names and contact information and other related information. OEHHA proposes to use this information in developing content for its website.

If OEHHA adopts this proposal, Proposition 65 compliance costs could increase, and posted information could further expose companies to frivolous private enforcement litigation or to product liability and personal injury lawsuits. Manufacturers could be adversely affected if OEHHA requires other businesses in the supply chain to produce information related to products or product components. In such cases, manufacturers should have protective measures in place such as requiring that distributors or others in the supply chain provide manufacturers with notice of information requests by OEHHA to enable manufacturers to review the information for relevance, trade secrets and related issues.