California’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed further amendments to clarify the new Prop 65 regulations that went into effect August 30, 2018, which focused on how to provide “clear and reasonable” warnings under Prop 65. Under the new regulations, manufacturers, producers, packagers, importers, suppliers, and distributors have primary responsibility for complying with Prop 65 requirements; and retail sellers have responsibility for placement and maintenance of consumer product exposure warnings only in limited situations. OEHHA’s latest proposed amendments clarify parties’ responsibilities along the often complex supply chain:

• The proposed amendments clarify that intermediate businesses in the chain of commerce may satisfy their obligation to provide a warning by providing a written notice and warning materials directly to either the authorized agent for the business to which they are selling or transferring the product, or to the authorized agent for the retail seller. Per the proposed amendments, when a business has not designated an authorized agent, the intermediate party may serve the notice on the legal agent for service of process for the business. These clarifications would be helpful to our clients trying to determine exactly how to comply with the Prop 65 obligations placed on intermediate parties in the supply chain who do not wish to label products but instead want to merely notify their customers.
• Currently, a retail seller has responsibility to provide Prop 65 warnings where it “has actual knowledge of the potential consumer product exposure requiring the warning” and there is no other party in the supply chain who is subject to Prop 65 (either because it is not a U.S. company or because it is a small business exempt from Prop 65). The proposed amendments clarify that the basis for “actual knowledge” of the retail seller must be of sufficient specificity for the retail seller to readily identify the product that requires a warning. The amendments  further clarify that “actual knowledge” can be received either by an “authorized agent” for the organization, or an employee in a position of sufficient responsibility that his or her knowledge can be imputed or attributed to the retail seller. These clarifications would be helpful to our retail seller clients trying to determine whether they have their own Prop 65 obligations or not.  If adopted, the amendments would narrow the circumstances where a retail seller is required to provide a Prop 65 warning (e.g., lower level employees who have knowledge but who may not fully understand Prop 65 issues will not impute knowledge to the retail seller and give rise to a duty to warn).

The comment period on the proposed amendments extends through January 11, 2019.