In the wake of the Governor Brown’s failed effort to get substantive Proposition 65 reform, the California Office of Environmental Health Hazard Assert (OEHHA) signaled that it is still interested in reforming the law by revising the regulations under its jurisdiction. On September 16, 2014, OEHHA issued a request for public comment on changes it is considering, including:
- modifications to the alternative risk levels for chemicals in foods
- updates to the “Naturally Occurring” regulation, which states that human consumption of food is not an exposure under Prop 65 if the chemical is naturally occurring in that food
- streamlining the Safe Use Determination process, which allows a business to request a determination from OEHHA that an exposure under a specific set of facts does not require a warning
- clarifying regulatory provisions on averaging exposures
- prioritizing chemicals for the development or update of safe harbor levels
- identifying issues that would benefit from interpretive guidelines, similar to OEHHA’s interpretative guidelines on sulfur dioxide in dried fruits (no warning required) and methanol from pectin in fruits and vegetables (methanol is not an exposure when naturally occurring).
- changes to the use of data on postnatal developmental exposures
These types of changes to the regulations could provide businesses in the California marketplace with a clearer prospective picture of what constitutes compliance with Proposition 65, rather than learning through ever-increasing litigation. In particular, streamlining the Safe Use Determination process may give businesses a better tool to demonstrate their products are safe before a Listed Chemical’s warning anniversary expires. Similarly, OEHHA’s prioritizing of Listed Chemicals for safe harbor levels and more active issuance of interpretative guidelines may prevent litigation from the plaintiff’s bar that can hamper an entire industry without clear indications of public benefit. That said, the plaintiff’s bar and consumer advocacy groups will also have an opportunity to submit comments, and it is possible the resulting regulations will be less favorable to the consumer products industry.
OEHHA will incorporate those comments into a public workshop (date TBD). Those wishing to provide comments must do so by 5:00 p.m. on Monday, November 17, 2014 by email (P65Public.Comments@oehha.ca.gov – include “Potential Regulations Workshop” in the subject line) or by other means to Ms. Monet Vela, OEHHA, P.O. Box 4010, MS-58D, Sacramento, California 95812-4010; fax: (916) 323-2265.