The state agency that is responsible for regulating Proposition 65 – the Office of Health Hazard Environmental Assessment (OHHEA) – continues to push forward with significant proposed revisions to the regulations. The focus of these changes is on the content of the warning language itself and the responsibility between manufacturer and retailer for the failure to warn. The agency hopes to have the new regulations in place by the summer of 2015. Proposition 65’s warning regulations have remained basically unchanged since they were written shortly after the law was passed by California voters in 1986. Since then, much has obviously changed, including the explosion of Internet commerce, something that did not exist and was not addressed when the regulations were written. And since the law was passed, confusion and frustration with how to place warnings and how to be protected by Proposition 65 warnings has been a constant issue for companies doing business here. While reform of the warning regulations is definitely needed, the proposed changes by OHHEA suggest more burden on companies doing business in California and perhaps even a step backward in actual protection.
The regulations would:
Require Proposition 65 warning language to specifically list any of these chemicals as being present in the product: acrylamide; arsenic; benzene; cadmium; chlorinated tris; 1-2 Dioxane, Formaldehyde; lead; mercury, phthalates; tobacco smoke (on premises); and toluene. So, if its product had one or more of these chemicals in it, a company could no longer rely on the general Proposition 65 warning as protection from notices of violation as is common today.
Make it the primary responsibility of the manufacturer, producer and distributor to place warnings on products, and confirm that a failure to place a warning is on these entities and not retailers if the retailer took “reasonable steps” to place warnings at the point of sale.
Allow a retailer with 25 or fewer employees a 14-day window to “cure” a minor violation such as having an obstructed warning sign (inadvertent obstruction).
Create an “interactive website” that would allow a consumer to search for information either via specific product or by a chemical. Companies that provide warnings would be required to submit for this website detailed information about the product, including exposure pathways for which the warnings under the law are required. The company would also be required to list steps a consumer can take to avoid exposure to the chemical.
The most concerning things about these proposed changes are twofold. First, companies that have one or more of the chemicals in their products from the list in No. 1 above would face a heightened burden under the law. They would lose the prophylactic protection of having a general Proposition 65 warning that is acceptable today to prevent liability. If these changes become final, companies would need test data to then determine how to handle warnings. Either test product themselves or insist that vendors do specific testing to determine what chemicals were present. Then, if they were, a specific warning would have to be placed to avoid liability listing each of the chemicals. One can imagine increased costs involved with this process.
Second, the “interactive website” the agency is proposing creates a whole host of potential pitfalls for companies. It is early in the process and the specifics of this proposal have yet to be fleshed out, but a publicly available database run by a state agency raises the specter of companies losing the ability to provide context for their products and/or the agency’s presentation resulting in misleading information.
Given the above changes are being proposed to regulations and not Proposition 65 statutory provisions, the state legislature will not be involved. OHHEA will submit the proposed regulatory changes to another state agency and then, if approved, they would become final. At this stage, various public hearings are scheduled for stakeholders to weigh in on the proposed changes. We will continue to follow this very important development.