Today, September 2, 2016, the California Office of Environmental Health Hazard Assessment (OEHHA) published its notice of adoption of amendments to Prop 65 – essentially overhauling Title 27 of the California Code of Regulations, Article 6, which governs the warning requirements of the Safe Drinking Water and Toxic Enforcement Act
The new regulations are not effective until August 30, 2018. In the interim, businesses have the option of complying either with the current regulation, or the provisions of the new regulation.
OEHHA has published a side-by-side comparison of the newly adopted regulations compared with the existing regulations. The new regulations will require businesses to reexamine and likely rewrite their existing warnings. Notably, while the new regulations purport to provide additional clarity on what constitutes a “safe harbor” warning (i.e., the types of warning methods and content that are deemed “clear and reasonable” for purposes of the Safe Drinking Water Act), they also impose additional requirements. Businesses using a safe harbor warning will now be required to identify at least one chemical for the “endpoint” (cancer and reproductive toxicity) covered by the warning. (See new § 25601.)
In other words, it has been sufficient for businesses to use a warning that states: “WARNING: This product contains a chemical known to the State of California to cause birth defects or other reproductive harm,” and such a warning will continue to be sufficient for another two years. However, under the new regulations, businesses will be required to provide more specific warnings, such as “This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer. For more information go to www.P65Warnings.ca.gov.” (See new §25603(b).) Businesses should begin to contemplate how the new warnings will be formulated under the regulations, and consider how best to transition these new warnings prior to August 2018.
The new amendments are the culminations of a years-long attempt at regulatory reform. After years of starts and stops, OEHHA commenced a new rulemaking on Nov. 27, 2015. As we reported earlier this year, OEHHA stated that its intent with the new regulations is to clarify the responsibilities of manufacturers, and others in the chain of distribution, for providing warnings about products that are eventually sold at retail, along with making changes to the current “safe harbor” warning and giving more compliance assistance for affected businesses. OEHHA released a second set of revisions to its proposed regulations on May 17, 2016. We previously illustrated what the actual Prop 65 warning labels may look like under the new regulations, in comparison with what the labels look like today.
In a parallel rulemaking, OEHHA earlier this year adopted a regulation giving itself authority to operate a new website to provide information about the Prop 65 label and potential pathways to exposure. As we warned earlier this year, this website will be new and fertile territory for defense and plaintiff counsel to explore.
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