OEHHA’s Proposed “Clarifications” to Proposition 65 Clear and Reasonable Warning Regulations Actually Represent a Significant Change

April 21, 2020

In January 2020, the Office of Environmental Health Hazard Assessment (OEHHA), the agency tasked with administering Proposition 65, issued proposed amendments to Health and Safety Code sections 25602, 25607, 25607.1 and 25607.3, which govern Proposition 65 warning requirements. The proposed amendments modify sections 25602 and 25607 to specify that for consumer products sold on-line and/or in a catalog, and for products that require a tailored warning that are sold on-line and/or in a catalog, the warning must be provided both on-line and via the methods specified in section 25602 for consumer products or the method specified for the tailored warning. In the Initial Statement of Reasons, OEHHA claims the proposed amendments are a “clarification” that would be helpful to the regulated community. However, the proposed amendments actually represent a significant change to the warning methods, and industry has taken notice.

California’s Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986—or “Prop. 65”—prohibits businesses from exposing people to chemicals on the Prop. 65 List without providing “clear and reasonable” warnings. Chemicals can be added to the Prop. 65 List based on California’s analysis of current scientific information and in situations where, as determined by other outside entities including the United States Environmental Protection Agency (USEPA) and the International Agency for Research on Cancer (IARC), a substance is a human carcinogen. Prop. 65 violations also carry substantial legal implications as Prop. 65 authorizes monetary penalties of up to $2,500 per day per violation. In the consumer product context, this means each sale or each exposure to a Prop. 65-listed chemical in a product can be considered a violation. Moreover, alleged violators are also required to pay the reasonable attorney’s fees of private plaintiffs who bring Prop. 65 actions on behalf of the general public.

As we previously reported, OEHHA revised the Prop. 65 clear and reasonable warning regulations in 2016, and those warning regulations went into effect in August 2018. As part of the changes made in 2016, OEHHA modified the methods for providing a Prop. 65 warning. The new methods that a manufacturer could choose from included a posted sign, shelf tag or shelf sign at the point of display, a warning provided via any electronic method or device, and/or a long-form warning label or a short-form warning label. Web-site and mobile application warnings are warnings provided “via any electronic method or device.” As a result, under the 2016 amendments, providing an on-line warning was one of the approved warning methods a company could choose to use. In 2017, OEHHA filed with the Office of Administrative Law (OAL) “non-substantive changes” to the new warning regulations. One of the changes that OEHHA made was arguably substantive—a point made strongly by industry in their recent comments. That change was the addition of the word “also” to section 25602(b); that change opened the door for the January 2020 proposed amendments, and, industry has argued, should have been subject to public comment.

The biggest criticism of OEHHA’s latest proposed amendments are that they essentially eliminate the “via any electronic method or device” method of providing a warning by now requiring companies to not only provide a warning via any electronic method or device, but also by one of the other warning methods (e.g., a posted sign or shelf tag). While OEHHA had previously issued guidance that indicated an on-line warning as well as another warning method must be used when selling products on-line, that guidance was just that—guidance, thus making it not binding. And, because it was inconsistent with the plain reading of the regulations themselves, it was not enforceable. The Consumer Brands Association, the Cal Chamber of Commerce and many organizations submitted comments on OEHHA’s January 2020 proposed amendments on March 31, 2020 expressing strong opposition to what they have categorized as dramatic changes to the warning regulations. OEHHA has not yet responded to industry’s comments; but we expect industry will remain vehemently opposed to these proposed amendments, and OEHHA will not only need to establish why its 2017 change was “non-substantive,” but also explain its claim that the current changes are merely “clarifications.”

For assistance in understanding how OEHHA’s proposed changes may impact your business, please contact us.