Overhaul Proposed for Prop 65 Warning Requirements

Earlier this week, the California agency responsible for implementing Proposition 65 issued a highly anticipated proposal to overhaul Proposition 65’s decades old warning regulations.

The proposal by the Office of Environmental Health Hazard Assessment (OEHHA) follows Governor Jerry Brown's 2013 announcement of his initiative to "update" Proposition 65. In particular, the Governor's reform package took aim at Proposition 65 warnings, which he felt were "too general." Although the Governor's reform efforts have not progressed in the legislature, OEHHA has now proposed regulations that would make significant changes to what Proposition 65 warnings say and how they are communicated.

OEHHA's proposal comes after a series of pre-regulatory stakeholder meetings held with representatives from industry and environmental groups and other enforcers. Arnold & Porter actively participated in these stakeholder meetings on behalf of several trade associations and other clients.

Key features of the proposed amendments are as follows:

The "Dirty Dozen." The existing warning regulations (which were adopted over 20 years ago) do not require specific chemicals to be named in warnings (except for warnings for alcoholic beverages). OEHHA is now proposing that most warnings mention specific chemicals. The chemicals that would need to be called out are the following: (1) Acrylamide, (2) Arsenic, (3) Benzene, (4) Cadmium, (5) Carbon monoxide, (6) Chlorinated Tris, (7) Formaldehyde, (8) Hexavalent chromium, (9) Lead, (10) Mercury, 11) Methylene chloride, and (12) Phthalates. This is a major departure from longstanding policy and would burden businesses with the need to identify these specific chemicals and an increased risk of litigation.

Other Changes to Warning Language. The warning language that is presumptively clear and reasonable under Proposition 65 (often called a "safe harbor" warning) would now state that a product "can expose you" to a chemical or chemicals (instead of stating that product "contains" a chemical or chemicals). Warnings for most consumer products would also include a designated symbol (a triangle with an exclamation point).

Special Warnings. In addition, the proposed regulations would require specific warnings for certain types of consumer products and services: (1) Food and dietary supplements, (2) Alcoholic beverages, (3) Restaurant foods and non-alcoholic beverages, (4) Prescription drugs, (5) Dental care, (6) Furniture, (7) Diesel engine exhaust, (8) Parking facilities, and (9) Amusement parks. The regulations would also require specific warnings for environmental exposures in designated smoking areas, petroleum products, and service station and vehicle repair facilities.

Easing Burdens on Retailers. Any business in the chain of distribution may be subject to Proposition 65's warning requirement. At the same time, the statute expresses a preference for manufacturers instead of retailers to be responsible for providing warnings, but this provision has largely lacked legal force.

The proposed amendments now attempt to give this provision force. They would allow a retailer to provide the name and contact information for the manufacturer if a plaintiff issues a 60-day notice letter to the retailer. The proposed regulations also specify the circumstances in which retailers remain responsible for providing Proposition 65 warnings. These circumstances include the following: (1) a retailer sells products under its own brand or trademark (i.e., private label products); (2) a retailer introduces a chemical causing an exposure; (3) a retailer has "actual knowledge" of a potential exposure requiring a warning; and (4) manufacturers or other upstream entities do not exist or cannot be compelled to comply because they are a foreign companies without a US agent.

In addition, if manufacturers request that retailers post warnings, retailers remain obligated to comply with Proposition 65 as long as manufacturers provide warning materials to the retailers and as long as retailers acknowledge receipt of the warnings on a periodic basis.

Effective Date. To give businesses lead time to make changes to their warning programs, the proposed amendments would go into effect two years after adoption, but businesses would be allowed to comply on an earlier timeframe if they prefer. It is unclear how warning amendments would affect the multitude of court-approved consent judgments with warning requirements.

OEHHA Website. OEHHA would require Proposition 65 warnings to include a link to OEHHA's website, where individuals could obtain more detailed information about products and exposures. In proposed companion regulations, OEHHA addresses how it would operate and maintain the website. Specifically, OEHHA could request information from a business for more specific information about warnings, which OEHHA could then post on its website. The information that OEHHA could request includes, for example: (1) the components of products containing chemicals; (2) the name and contact information for the manufacturer; (3) the chemical(s) at issue in the warning; and (4) the estimated level of exposure to the chemical. It remains unclear whether OEHHA will have enforcement power to compel businesses to make the requested disclosures.

In pre-regulatory drafts, OEHHA would have required manufacturers to disclose this information automatically to OEHHA for every product for which a business provided a warning. Thus, OEHHA's current proposal significantly scales back the originally proposed disclosure requirements.

OEHHA will hold a public meeting on the proposal on March 25, 2015. Public comments must be submitted to OEHHA by April 8, 2015. Arnold & Porter expects to be very involved in this process.

© Arnold & Porter Kaye Scholer LLP 2015 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.