Proposition 65 mandates that companies doing business in California provide warnings about exposures to chemicals listed as known to the state to cause cancer or reproductive toxicity. The California Office of Environmental Health Hazards Assessment seeks to eliminate the use of short-form warnings on certain products and for businesses to list at least one chemical in short-form warning language.
The California Office of Environmental Health Hazards Assessment (OEHHA) provided notice of proposed amendments to various sections of the regulations addressing clear and reasonable warnings pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986, better known as Proposition 65, on January 8, 2021. The proposal seeks to change portions of the safe harbor warning provisions that became operative in August 2018, which companies doing business in California have been using to provide labeling and warning language.
Most significantly, the proposed amendments would do the following:
Proposition 65 mandates that businesses provide a “clear and reasonable warning” to Californians about exposures to chemicals that have been listed pursuant to Proposition 65 as known by the state to cause cancer or reproductive toxicity. A primary goal of Proposition 65’s warning requirement is to inform Californians in order to allow them to make meaningful decisions about exposures to potential risks. In the initial and final statements of reasons for the 2016 rulemaking, OEHHA stated that the 2016 amendments would “provide useful information to individuals while avoiding unwieldly on-product warnings.”
According to OEHHA, a significant number of businesses have employed short-form warnings in ways OEHHA believes are inconsistent with the intent of the regulations. In its initial statement of reasons on the recently proposed amendments, OEHHA outlines three primary concerns with the current use of short-form warnings.
First, because businesses are not required to identify a chemical or chemicals in the short-form warning, OEHHA is concerned that these warnings are significantly less useful to consumers. Second, OEHHA believes businesses are using short-form warnings where products or product labels can accommodate longer warnings. Third, OEHHA is concerned businesses are using short-form warnings prophylactically, i.e., where no warning is required because a product does not expose the consumer to a detectable amount of any listed chemicals.
In support of these amendments, OEHHA references businesses that it claims apply Article 6 warnings only “out of an abundance of caution” where a consumer is unlikely to be exposed to a listed chemical as evidence that short-form warnings are being misused. However, OEHHA does not address the potential liability that a company may be exposed to by not including a warning, or situations where a business is unable to determine consumer exposures without significant scientific studies or risk assessments. OEHHA believes that the suggested amendments will discourage unnecessary warnings, and will make these short-form warnings more useful to consumers by (1) requiring businesses to identify at least one chemical and (2) only allowing short-form warnings where the smaller size of a product’s label warrants it.
OEHHA appears to minimize the burden that these changes will place on businesses, saying only that it “is aware that modifying short-form warning provisions may require some retooling by businesses who chose to comply with these safe harbor regulations.” According to OEHHA, the economic “effects” of these substantive changes “can be spread over the one-year phase in period” of the new amendments.
OEHHA contends that these amendments are necessary and that no reasonable alternative exists, but the proposed amendments raise a number of questions and issues for businesses that provide warnings under Proposition 65.
The period for public comment is open from now until March 8, 2021.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Collie James, IV
Ella Foley Gannon
Glen R. Stuart