Proposition 65 "Reform": Consumer Protection or Litigation Stimulation?

Latham & Watkins LLP

Proposed new regulations may have unintended consequences.

Despite the California governor’s call for meaningful Proposition 65 reform and a reduction in frivolous enforcement lawsuits, the California Office of Environmental Health Hazard Assessment (OEHHA) is proposing new Proposition 65 warning requirements that could substantially increase Proposition 65 litigation risks to businesses operating or selling products in California. OEHHA, the agency charged with implementing and enforcing Proposition 65, is proposing substantial changes to the regulations governing the content of warnings that must be provided to consumers regarding products that contain chemicals listed as “known” to cause cancer or reproductive toxicity. The most significant of these proposed regulatory changes include onerous new warning label language and a requirement that businesses submit to OEHHA very burdensome information concerning the chemicals in products that require Proposition 65 warnings, even when the business would not typically be expected to have such information. OEHHA recently held its first public workshop to discuss its initial draft of the proposed regulations, and will accept written comments until May 14, 2014. OEHHA plans to initiate the formal rulemaking process this summer, with the goal to adopt final regulations in 2015.

Proposition 65 in a Nutshell -

Proposition 65, officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986,1 prohibits certain businesses from exposing the public to chemicals “known to the state to cause cancer or reproductive toxicity” without prior warning. Proposition 65’s stated intent is to protect California citizens and the state's drinking water sources from chemicals known to cause cancer, birth defects or other reproductive harm, and to inform citizens about products that contain such chemicals, and occupational or environmental exposures to such chemicals. OEHHA maintains the list of chemicals that are subject to Proposition 65’s warning requirements, which is regularly updated and which is often criticized for including substances that many other government agencies do not consider to be harmful.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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