On November 24, 2015, the California Office of Environment Health Hazard Assessments (OEHHA) officially withdrew its January 16, 2015 proposal to repeal and replace Article 6 in Title 27 of the California Code of Regulations, the regulations that govern Proposition 65 warnings (the 2015 Warning Regulations). We summarized OEHHA’s proposal here. In April, 2015, OEHHA received 61 written comments. OEHHA never officially responded to the 61 comments. Instead, OEHHA withdrew the 2015 Warning Regulations and issued a new proposal on November 24, 2015. The new proposal (the 2016 Warning Regulations) addresses many but not all of the comments received in response to the 2015 Warning Regulations. This alert summarizes the 2016 Warning Regulations and compares them to the heavily commented upon 2015 Warning Regulations.
Safe Harbor: Most significantly, the 2016 Warning Regulations, if adopted, would provide voluntary safe harbor language that would be deemed “clear and reasonable.” OEHHA also would still allow other clear and reasonable warnings, presumably such as warnings mandated under a court-approved consent judgment, but the 2016 Warning Regulations delete the current definition of a clear and reasonable warning. This means persons who do not use the voluntary safe harbor text are vulnerable to a lawsuit. However, since the absence of a clear and reasonable warning is an element of plaintiff’s prima facie case, plaintiff will bear the burden of proving that a warning which differs from the safe harbor is not clear and reasonable. Without a definition in the regulation, this could present a hurdle for some plaintiffs.
Timing and Grandfathering: The effective date is proposed to be two years after adoption of the 2016 Warning Regulations. This is the same timing as was proposed in the 2015 Warning Regulations. To address comments that two years did not afford adequate sell-through time for products, the 2016 Warning Regulations specifically provide that warnings for consumer products manufactured before this effective date which comply with current warning regulations will be deemed clear and reasonable. The 2016 Warning Regulations also provide that parties whose warnings comply with their consent judgment terms will be deemed clear and reasonable.
Retailers: Like the 2015 Warning Regulations, the 2016 Warning Regulations propose to regulate liability and responsibility between manufacturers and retailers. As between retailers and manufacturers, the 2016 Warning Regulations allow the manufacturer to discharge its Proposition 65 warning duties by providing the warning materials to the “authorized agent for the retail seller” and obtaining confirmation of receipt. This is an important change from the 2015 Warning Regulations, which required a retail seller to affirmatively acknowledge receipt. The “authorized agent of a retail seller” is defined as the person or entity designated by a retail seller to receive notices from product manufacturers, suppliers and distributors under the Proposition 65 warning regulations. Under the 2016 Warning Regulations, this notification process must be renewed twice in the first year but then only once per year thereafter. In contrast, the 2015 Warning Regulations would have required perpetual semiannual notifications. The 2016 Warning Regulations would also allow retailers and manufacturers to contract amongst themselves for an alternate division of warning responsibilities.
Warning Contents: Perhaps the most commented upon provision in the 2015 Warning Regulations was OEHHA’s proposal that persons name any or all of 12 specifically highlighted chemicals on the Proposition 65 list. The list of a dozen highlighted chemicals has been eliminated. Instead, OEHHA proposes that the regulated community name one chemical of its choosing in a safe harbor Proposition 65 warning. This means, however, that persons need to know of at least one chemical for which an exposure is occurring before they can avail themselves of the safe harbor warning. Moreover, the safe harbor text under the 2016 Warning Regulations is not broad enough to encompass exposures to other unnamed chemicals, leaving companies vulnerable to litigation lest they name all of the chemicals for which an exposure is occurring.
The 2016 Warning Regulations continue to include a “foreign language” component: the Proposition 65 warning must be provided in a foreign language when other “consumer information” about the product is provided in that language. The phrase “consumer information” is vague and undefined.
The yellow hazard triangle symbol will need to precede a Proposition 65 warning, under the 2016 Warning Regulations, although the yellow color is mandated only if the label otherwise uses the color yellow.
Warning Placement: Warning placement options are the same under the 2016 Warning Regulations as proposed under the 2015 Warning Regulations:
- Product-specific shelf signs
- Electronic notice before purchase
- On product labels
- On stickers or tags affixed to products
- Internet warning before purchase
- Product-specific catalog warning.
Industry-Specific Warnings: The 2016 Warning Regulation continues to include several industry-specific warning programs. Companies in these industries must comply with the industry-specific requirements if they wish to rely on the safe harbor.
Supplemental Warnings Allowed: The 2016 Warning Regulations allow supplemental warning information so long as it does not contradict the safe harbor warning. The 2015 Warning Regulations would have prohibited supplemental information that would “diminish” or “dilute” the safe harbor warning. Those two provisos were eliminated.
Notable Absence: The 2016 Warning Regulations do not propose a definition for the term “intentionally.” The 2015 Warning Regulations likewise did not do so and were therefore criticized.
Other Changes: While this rulemaking focuses on consumer product exposures, the 2016 Warning Regulations include changes to the regulations on environmental exposures as well. For occupational exposures, the 2016 Warning Regulations would continue to rely on California Occupational Safety and Health Administration (OSHA) Hazard Communication Standards.
Comments to the proposed 2016 Warning Regulations currently are due by January 22, 2016 and a public hearing is set for January 13, 2016.
If you have any questions regarding this Sidley Update, please contact the Sidley lawyer with whom you usually work, or
Amy P. Lally
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