The California Office of Environmental Health Hazard Assessment (OEHHA), the lead agency for implementing Proposition 65, is currently in the process of revising Prop 65’s administrative regulations, which will likely result in significant changes to how the business community attempts to comply with Prop 65.
The revised regulations are expected to be finalized by January 2016, but there will be a 2 year grace period for complying with the new provisions. The grace period is meant to provide a transition period for businesses, but it will undoubtedly create some confusion, as there will be two sets of standards in the marketplace during that time.
Highlights of pending changes to Prop 65 requirements:
- Change in General Safe Harbor Warning Language – A new symbol consisting of a black exclamation point on a yellow triangle will be required. Also, instead of saying product “contains,” the warning would read “can expose you to chemicals known to . . .” (See proposed 27 CCR §25604)
- Identify Certain Chemicals if Present – The names of listed chemicals should be identified on warning labels if exposure to the applicable chemical is “reasonably calculated to occur at a level that requires a warning.” Listed chemicals include Arsenic, Formaldehyde, Lead, Mercury and Carbon Monoxide. (See proposed 27 CCR §25602)
- Specific Categories of Goods or Services – Additional regulatory guidance and requirements for specific categories like food, alcoholic beverages, restaurants, public facilities, prescription drugs and dental care. Changes include specific warning content and how the warning can be transmitted to customers. For example, for in store purchases, the warning would have to be given by shelf tag, electronic warning at time of purchase (cash register?) or product label. (See proposed 27 CCR§ 25608-25608.27 et seq.)
- Internet Sales – Warnings will need to be displayed to the purchaser before the purchase is completed. This requires a clearly marked hyperlink or otherwise prominently displayed warning – the user should not have to search for the warning in general content. (See proposed 27 CCR §25603)
- Retailer Obligations – The proposed regulations attempt to acknowledge that under Prop 65 the primary responsibility for providing warning materials should be on upstream suppliers/producers, and not retailers. Retailers are obligated to pass on warnings provided by the upstream parties. If there is no warning, retailers are responsible for providing the warning only under certain conditions, like private label products or the introduction of a chemical by the retailer. A retailer would also have the duty to provide a warning if the retailer has actual knowledge of the potential exposure and there is no viable upstream party – e.g., there is no upstream party with 10 or more employees or who is subject to service of process in the US. (See proposed 27 CCR §25600.2)
- Lead Agency Website – A website would be created by OEHHA to collect and provide information regarding specific exposure scenarios. This would include information about how exposures occur, severity of exposure, health effects of exposure and how to avoid exposure. Business would have to reasonably respond to OEHHA requests for information. Trade secrets would be provided some protection. Information could also be independently reported by third parties. Businesses could request corrections of inaccurate information. (See proposed 27 CCR §25205)
While the proposed regulations would undoubtedly provide more guidance for businesses, they will also likely create more opportunities for mistakes. What will be required for safe harbor compliance may be easier to assess under the proposed regulations, but it will require additional resources on the part of businesses to ensure such compliance. Businesses should prepare for the changes as the regulations are finalized to ease the transition. Updates to follow.
Carmel & Naccasha frequently provides advice on issues relating to Prop 65. Brian Stack is an attorney at Carmel & Naccasha LLP whose practice focuses primarily on civil litigation, including business litigation, employment law, real estate and tort liability, as well as business transactions and corporate law. Brian can be reached through his biography page or at 805-546-8785.