Recently, California’s Office of Environmental Health Hazard Assessment (“OEHHA”) announced that the comment period on draft proposed regulations would remain open through June 13, 2014 at 5:00 p.m. OEHHA has proposed significant changes to the regulations that govern Proposition 65 warnings.
Among the most significant proposed changes are:
- mandating that certain specific “clear and reasonable” warning language be used in certain specified situations;
- requiring the warning to state that the consumer will be exposed to a listed chemical (i.e. requiring an admission of exposure and possible liability for past conduct) and not just a statement that the product contains a listed chemical;
- requiring that warnings for exposures to acrylamide, arsenic, benzene, cadmium, chlorinated tris, 1,4-dioxane, formaldehyde, lead, mercury, phthalates, tobacco smoke, and toluene to specifically name those chemicals in the warning;
- requiring businesses that provide warnings to submit a detailed report to OEHHA, which will be published on OEHHA’s website, that includes, among other things, contact information for product manufacturers, the anticipated route of exposure to the listed chemical, the anticipated level of human exposure, and actions to minimize or eliminate exposure; and
- exempting warnings contained in court approved settlements from the new regulations but not exempting anyone else who relied on those consent judgments and conformed their labels accordingly.
The draft proposed regulations raised numerous concerns regarding costs of implementation, impacts on litigation, and effectiveness in accomplishing the purported goal of consumer education. It is not clear that this proposal will result in accurate, reasonable warnings.
Last week, OEHHA held a pre-regulatory public workshop during which commenters criticized the possibility of increased litigation flowing from the mandatory warning language, impairment of trade secrets in the reporting obligations, the lack of scientific criteria by which the 12 chemicals that must be disclosed by name were chosen, the lack of studies suggesting that the public was clamoring for clarity as to Proposition 65 warnings, and costs to all parties in implementing such a scheme.
OEHHA will continue to accept written comments until 5 p.m. on June 13, 2014. OEHHA has said it plans to propose formal regulations by summer 2014, and hopes to adopt final regulations, following additional notice and comment periods, by summer 2015.
If you are interested in commenting on the draft proposed regulations, or have questions regarding them, please contact us.
Judith M. Praitis
Sidley Consumer Products and Services Litigation Practice
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