Yesterday, the California Office of Environmental Health Hazard Assessment (OEHHA) issued notice of its long anticipated proposed rulemaking to repeal the existing regulations that govern the provision of clear and reasonable warnings under California’s law known as Proposition 65 (Health & Safety Code Sec. 25249.5 et seq.) and to adopt new regulations on clear and reasonable warnings. The proposed new regulations make dramatic changes to the Proposition 65 warning regulatory regime. Among other changes, the proposed rulemaking:
- Provides a mandatory combination of new warning language and a symbol system that must be used to comply with the Proposition 65 warning requirement
- Lists 12 chemicals or groups of chemicals (acrylamide, arsenic, benzene, cadmium, carbon monoxide, chlorinated tris, formaldehyde, hexavalent chromium, lead, mercury, methylene chloride, phthalates) that must be specifically identified by name in any Proposition 65 warning, where applicable
- Does not grandfather any warnings previously approved in settlements or court judgments or otherwise
- Delineates additional specific warning requirements for the following: food (including dietary supplements), alcoholic beverages, restaurants, prescription drugs, dental care, raw wood, furniture, diesel engines, passenger vehicles, parking garages, amusement parks, petroleum products, service stations, and designated smoking areas
- Includes sections on retailer responsibilities, occupational warnings, and environmental warnings
The proposed rulemaking reflects some of the comments OEHHA has received from stakeholders since the proposed rulemaking was first foreshadowed more than a year ago. Written comments regarding the proposed rulemaking will be accepted until 5:00 p.m. on April 8, 2015.
OEHHA also issued notice today of a separate but related rulemaking through which OEHHA will develop a website “to collect and provide information to the public concerning exposures to listed chemicals for which warnings are being provided” under Proposition 65. Originally part of OEHHA’s proposal to redo the warning regulations in an earlier draft, OEHHA proposed the website as a separate rulemaking in response to early stakeholder comments and concerns. Among other things, as drafted, manufacturers, producers, distributors or importers of any product, including food, must provide the following information to OEHHA upon request when reasonably available:
- Name and contact information for the manufacturer
- Name(s) of the listed chemical(s) for which a warning is being provided
- Location of the chemical(s) in the product or area (for environmental exposures)
- The concentration of the chemical(s) in the final product (or in each component part thereof)
- The matrix in which the chemical is found and the concentration of the chemical in the matrix
- The anticipated routes of exposure to the chemical(s)
- The estimated level of exposure to the chemical(s)
Written comments regarding the proposed website also may be submitted until 5:00 p.m. on April 8, 2015. Public hearings on both proposed rulemakings are scheduled for March 25, 2015 in Sacramento, Ca. Companies doing business in California should consider whether to submit comments or attend the hearing directly or indirectly through trade associations.
Proposition 65 is a 29-year-old California right to know law intended to alert consumers about the presence of hazardous chemicals in foods, supplements, consumer goods, and other products and places. OEHHA is the lead agency for Proposition 65 implementation.
For additional information about the proposed rulemakings, questions on how the proposals might affect your business, or to discuss how to submit comments on the proposed regulations, please contact:
|Amy P. Lally
Sidley Consumer Products and Services Litigation Practice
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