Continuing the saga of revisions to the Prop 65 regulations, OEHHA has repealed its January 2015 clear and reasonable warning proposed rulemaking and replaced it with a new proposed regulation.
The new proposed rulemaking addresses many concerns raised by the business community, either addressing the issue or explaining why OEHHA will not change it. A public meeting on the new proposed regulations will be held on January 13, 2016. Written comments are due on January 22, 2015.
Below is a rundown of key differences and similarities between the January and November proposals. We will continue to update this issue as it develops.
Safe harbor warnings
OEHHA’s January proposal included the following safe harbor language:
WARNING: This product can expose you to a chemical [or chemicals] known to the State of California to cause [cancer]/[birth defects or other reproductive harm]. For more information go to www.P65Warnings.ca.gov.
Despite concerns that changing the safe harbor warning language from “contains” to “can expose” could cause confusion, the new proposal maintains the “can expose” language. OEHHA cited a U.C. Davis study that concluded such a change would neither confuse nor alarm customers.
The January proposal required warnings to specifically identify whether a product contained any of 12 Listed Chemicals, the so-called “Dirty Dozen.” The revised rulemaking eliminates this requirement, instead requiring all warnings to include the name of at least one chemical for which the warning is being provided.
The revised proposal retains a two-year delay before the new warning requirements become effective. However, the delay provision excludes products manufactured before the effective date as long as they bear a warning that is currently compliant. This revision should avoid significant expense in reworking existing inventories.
The January proposal originally prohibited supplemental information that “dilute[s] or negate[s]” the safe harbor language. The revised proposal has eliminated that language, and now only limits supplemental information that actually “contradicts” the safe harbor language. OEHHA’s Initial Statement of Reasons provides examples of contradictory information.
Minimizing the burden on retailers has been a primary goal of the revisions to the warning requirement (both in the prior and current proposals). The current proposal provides some clarification regarding retailer responsibility for providing warnings.
First, the new proposal changes the requirements for giving written notice of warning requirements to retailers.
The January proposal required a manufacturer, distributor, or producer to ensure:
- Notice has been received and acknowledged in writing by a retailer; and
- The acknowledgement is renewed every 180 days during the product’s sale in California.
The November revisions now require a manufacturer, distributor, or producer to:
- Provide warning materials to the retailer’s “authorized agent” and obtain confirmation of receipt; and
- Seek renewal twice in the first year and then once annually.
Second, the new proposal requires the manufacturer, distributor, and producer of a product to provide a retail seller with additional notice within 90 days if a new chemical name or endpoint (for example, cancer or reproductive toxicity) is required to be included in the warning on a product.
“Actual knowledge” for 60-day notices
The November proposal retains a controversial two business-day deadline for corrective action when a retail seller with no actual knowledge receives a 60-day notice, despite concerns raised by the business community regarding the feasibility of retailers taking action in such a short period of time. OEHHA justifies this time frame in its Initial Statement of Reasons by stating that such a deadline is “consistent” with policies for recalls by several other federal agencies.