The mysterious world of Prop 65 reloaded, part 2: the list

Editor’s Note: The way that chemicals get added to the list has not changed; however, the list of Prop 65 chemicals has. Here are some recently added chemicals that may be found in consumer products:

With the exception of PCBTF (added on June 28, 2019) and Nickel (added on October 26, 2018), all of the aforementioned chemicals have all been added to the list at least 12 months ago, which means that products containing these chemicals must have required warnings if an exposure will be significant.

To determine whether Prop 65 impacts your company, the starting point is the Prop 65 chemical list. Knowing the listed chemicals and keeping up to date on new additions could mean the difference between facing a lawsuit or avoiding thousands of dollars in legal fees and settlement payments through advanced compliance.

Adding chemicals to the list

Under Prop 65, the Office of Environmental Health Hazard Assessment can add chemicals to the list in four ways. Once OEHHA identifies a chemical for possible listing, it initiates a regulatory process including public notice of intent to list, a public comment period, OEHHA’s review of any comments, and public notice of the final decision.

Listing by the state’s qualified experts mechanism

The Science Advisory Board is a group of expert scientists, appointed by the Governor, who determine whether unlisted chemicals are carcinogens or reproductive toxins.

There are two factions of the board: The Developmental and Reproductive Toxicant (DART) Identification Committee and the Carcinogen Identification Committee.

Although the two committees determine risks for different types of concerns, both follow the same process when making decisions about adding chemicals to the list:

  • OEHHA staff scientists prepare hazard identification reports identifying scientific evidence showing a chemical’s carcinogenity or potential for reproductive harm. Once complete, the report is released for a 45-day comment period and the committee members review it.
  • Committee members hear public testimony on the chemical and deliberate.
  • If a chemical has been “clearly shown through scientifically valid testimony according to generally accepted principles” to either cause cancer or reproductive harm, OEHHA will add it to the list.

Listing by the authoritative bodies mechanism

The Science Advisory Board deems certain organizations “authoritative bodies.” If any authoritative body identifies a chemical as either causing cancer or reproductive harm, OEHHA may add it to the list. The Prop 65 regulations outline the process for adding chemicals through this mechanism and identify the following authoritative bodies:

Listing by the formally required mechanism

If a state or federal government agency requires that a chemical be labeled or identified as causing cancer or reproductive harm, OEHHA can add it to the Prop 65 list. OEHHA typically lists prescription medications requiring FDA warnings this way.

Listing by the Labor Code listing mechanism

If a chemical is identified as causing cancer or reproductive harm via one of the lists identified in California’s Labor Code, and meets listing criteria, OEHHA can add it to the list.

Updating the list

OEHHA must update the list at least once a year, but it is usually more frequent than that. We will post updated lists on a regular basis, including new listed chemicals and chemicals OEHHA intends to list. You can also review OEHHA’s California Regulatory Notice Register Notices, which provide public notice of potential and new listings.

Effect of new additions to the list

Prop 65 requires warnings for significant exposures to listed chemicals starting 12 months after OEHHA adds the chemicals to the list (this 12 month window is designed to allow for impacted companies to determine whether a warning is required). Private Prop 65 enforcers commonly issue a rash of notices of intent to sue (called “60-day notices,” discussed further in an upcoming post) for products shortly after the listing anniversary.

As a result, keeping up-to-date on listed chemicals for products you currently sell in California, or checking the list before entering the California market with a new product, is your first (and, perhaps, most effective) line of defense against Prop 65 enforcement actions.

Adler elected Acting Chair of CPSC in surprise

In what can only be described as a shocking turn of events, CPSC Commissioner Robert Adler (Dem.) has been elected Vice-Chair of the Commission. This means he will become the Acting Chairman of the Commission when current Acting Chairman Ann Marie Buerkle steps down at the end of September. Since Buerkle announced she was withdrawing her nomination to be Chairman and would leave the CPSC at the end of her term this year, many assumed that Commissioner Peter Feldman (Rep.) would assume the Acting Chair role, as Republicans had recently gained a majority for the first time in more than a decade.

The CPSC has gone through the ringer over the past few months, as multiple stories from the Washington Post have called into question whether the Commission, under Buerkle’s leadership, was too “business friendly.”

Buerkle, who voted for Adler, said in a statement that she supported the Democrat because he is the most senior and experienced commissioner. Feldman and the other Republican Commissioner, Dana Baiocco, both joined the Commission within the past 12 months.

Once Buerkle’s terms expires, the Commission will return to a 2-2 R/D split–as a result, it is unlikely that much will substantively change at the Commission while Adler is Acting Chairman. However, Adler is very outspoken with his positions, leaving the possibility that he will make the most of this window to reposition the Commission. Presumably, once the Trump Administration nominates a new commissioner to replace Buerkle, Feldman will be nominated to lead the Commission. But his confirmation as Chairman will remain uncertain–Ms. Buerkle was not able to attain confirmation despite being put up by the Trump Administration.

The mysterious world of Prop 65 reloaded, part 1: The law

Editor’s Note: This post has been updated to reflect 2018 revisions to the Prop 65 regulations, which for the first time allocated responsibility for compliance within the supply chain. These revisions place the primary responsibility for compliance on manufacturers, distributors, and importers, while limiting the circumstances in which retail sellers are responsible for providing consumer product warnings.

To the average person in California, if they know anything about Proposition 65 at all, it is usually because they have a seen a warning sign in a bar or at a store. In most instances, after seeing the sign, they likely kept drinking or kept shopping.

Back in 1986, however, Californians’ concern over toxic chemicals in the environment, workplaces, and consumer products was a hot button issue because it was much more difficult to get information about everyday exposure to chemicals. As a result, 63% of California voters approved Proposition 65, and shortly thereafter, the ballot initiative became codified in the California Health & Safety Code as the Safe Drinking Water and Toxic Enforcement Act of 1986 (Health and Safety Code § 25249.5 et seq). The following sections provide an overview of Proposition 65. Detailed discussions will follow in upcoming posts.

Prohibitions

Prop. 65 prohibits a person from knowingly discharging chemicals known to cause cancer (carcinogens) or reproductive harm in a place where those chemicals are likely to end up in drinking water. We will skip the drinking water part, as it is relatively straightforward and not controversial.

The statute also prohibits a person from knowingly and intentionally exposing any person to carcinogens or reproductive toxins without first providing a warning, if the exposure is significant. This is the key provision of Proposition 65 that gives retailers, manufacturers, and vendors of consumer products heartburn, and on which we will focus this series.

Enforcement

Prop 65 authorizes both public and private enforcers to bring enforcement actions against parties alleged to have failed to provide required warnings to the tune of up to $2,500 per day per violation in civil penalties. Under California’s Private Attorney General Statute (Code of Civ. Proc. § 1021.5), private enforcers may also seek attorney fees for “enforcement of an important right affecting the public interest” if the action results in a “significant benefit” to the public.

Procedural requirements

The statute contains a number of procedural requirements that public and private enforcers must follow in bringing an enforcement, including the infamous 60-day Notice requirement and settlement procedures, which we will discuss in upcoming posts.

The list of chemicals

The statute directs the Governor to publish the list of carcinogens and reproductive toxins that require a warning if causing a significant exposure, and to revise it at least once per year. Chemicals can get on the list four ways, including (1) determination by designated scientists and health professionals, (2) identification by specified “authoritative bodies,” such as the US EPA, (3) identification by a federal or state agency as requiring warning labels (e.g., FDA drug labeling requirements); and (4) identification as a hazardous substance under the California Labor Code.

Exemptions

Proposition 65 provides three exemptions for the warning requirements. First, it exempts any exposure that is already governed by a federal warning law that preempts Prop 65. Second, it exempts exposures that take place within 12 months of a chemical being added to the list. Third, it exempts exposures that are not significant (no significant risk assuming lifetime exposure at the level in question for substances known to the state to cause cancer and no observable effect assuming exposure at one thousand (1000) times the level in question for substances known to the state to cause reproductive toxicity).

In addition, Prop 65 excludes “any person employing fewer than 10 employees” from the warning requirement.

Allocation of responsibility

Prior to August 2018, any party in the supply chain could be held liable for failing to provide a warning. But revisions to the warning regulations, effective August 2018, allocate responsibility for warnings primarily to manufacturers, distributors, and importers (together, suppliers), with retailers responsible only in specified circumstances.

Suppliers can meet their warning obligation “either by affixing a label to the product bearing a warning…, or by providing a written notice directly to the authorized agent for a retail seller.”  27 Cal. Code Regs. § 25600.2.

Retailers are responsible for providing a warning (i.e., may be liable in an enforcement action) when:

  • The retailer sells the product under its private label or a brand or trademark owned by the retailer.
  • The retailer has knowingly and intentionally introduced a listed chemical into the product, or caused a listed chemical to be created in the product.
  • The retailer has covered, obscured, or altered a warning label.
  • The retailer has received warning information and materials from the supplier and does not post them—note that consent for the warnings from the retailer is not required; the supplier need only send the information to the retailer’s authorized agent.
  • The retailer has actual knowledge of the potential product exposure requiring the warning, and the suppliers are exempt and have no place of business in California or agent for service of process in California.

A retailer can modify this allocation by contract, requiring its suppliers and other vendors to provide a warning, as long as a required warning is ultimately provided.

Regulations

The statute directs the Governor to appoint an agency to implement Proposition 65. The California Office of Environmental Health Hazard Assessment (OEHHA – pronounced “o-wee-ha” or “o-hee-ya”), part of CalEPA, is tasked with implementing Prop 65. To do so, it has promulgated a series of regulations and issued various guidance documents that more fully explain Proposition 65 compliance. OEHHA also publishes the list of chemicals.

The mysterious world of Prop 65–reloaded!

Nearly five years ago, we started publishing our first serial, The mysterious world of Prop 65. Although we knew we struck gold with the brilliant series title, we could not have contemplated that these would become our most visited, read, and referred to posts.

Since 2014, a lot has changed in the Proposition 65 landscape, ranging from the revised safe harbor warning regulations in 2018 to the cast of characters comprising the Prop 65 plaintiff’s bar.  We thought it high time to provide an updated edition. Over the next few weeks, we will be posting The mysterious world of Prop 65—reloaded. We will publish edited versions of the original posts, with an editor’s note at the top to highlight any changes. In some instances, not much has changed, so you can maintain the same level of frustration over doing business in California.  In others, much has changed, so you will get to have a brand new headache. Our revised edition will “reload” a variety of topics, including:

  • The law and its requirements, including the difference between exposure and chemical composition
  • The chemical list
  • Warnings
  • Penalties and other potential exposure
  • The mechanics of a Prop 65 claim
  • Enforcement (public and private plaintiffs)
  • Burdens at trial, including knowledge requirements, exposure, and warning exceptions
  • Settlements
  • Impacts of the revised safe harbor warning regulation

TARIFFS! Exclusion process for Section 301 tariffs is now available for List 3 products

Unsurprisingly, tariff issues are becoming more and more prevalent for consumer products manufacturers, distributors, and retailers. In a positive turn, List 3 products are now eligible for exclusions from the significant Section 301 (China) tariffs. Check out this summary and analysis of the process from our international trade colleagues.

 

What now? California finalizes Prop 65 exemption for coffee

What now? California finalizes Prop 65 exemption for coffee

On June 3, 2019, the California Office of Administrative Law approved a regulation adopted by the California Environmental Office of Health Hazard Assessment (OEHHA) exempting chemicals in coffee from Prop 65’s warning requirement. The regulation, which has an effective date of October 1, 2019, provides:

Exposures to chemicals in coffee, listed on or before March 15, 2019 as known to the state to cause cancer, that are created by and inherent in the processes of roasting coffee beans or brewing coffee do not pose a significant risk of cancer.

While the adoption of the regulation would seem to end the ongoing controversy about whether Prop 65 warnings are required for acrylamide in coffee, and to be very good news for those who make and sell coffee, much dust remains to settle. Continue reading

Webinar: What do you mean I’m shipping hazmat?

I’m delighted to announce that Norton Rose Fulbright will be hosting a webinar on May 30 at noon CDT with an absolute HazMat pro, Jim Shimko of Labelmaster.

Each day, U.S. businesses transport over one million HazMat shipments, and every one of them is subject to federal standards. Chances are, your company is shipping HazMat whether you know it or not. And while your logistics and operations personnel may be well-versed in the requirements, HazMat is heavily enforced, and in-house counsel should know the basics in case a problem arises. HazMat regulations establish standards for HazMat identification, training, labeling, use of proper containers, recordkeeping, reporting, placarding, and vehicle safety. The transport of such goods is governed by a complex network of national and international regulations, programs that have extremely broad applicability across many industries.

During the webinar, we will cover the following topics:

  • What is HazMat?
  • How are these rules applied?
  • How do you structure a management program to control the risks?
  • Who can help?

You can register for the webinar here.

Beyond cosmetics: ARB enforcement of California’s Consumer Products regulation

We’ve previously published analyses on the California Air Resource Board’s (ARB) case settlements related to cosmetic products, but there are a whole host of other consumer products also subject to ARB enforcement. We thought it would be helpful to provide some insight into these as well. Continue reading

Six months: how the new Prop 65 regulations have impacted retailer enforcement

It’s been about six months since the new Prop 65 regulations allocated the primary responsibility for providing warnings to suppliers, manufacturers, distributors, and importers, while limiting retailers’ responsibility to limited, specified circumstances. Many wondered what impact these new regulations would have on the enforcement of Prop 65 against retailers. Six months in, the answer still isn’t clear. Continue reading

CPSC targets furniture tip over hazard with substantial product hazard designation

At last week’s ICPHSO Annual Meeting, the US Consumer Product Safety Commission’s Acting Chairman Ann Marie Buerkle broke news to attendees, announcing that CPSC would deem “clothing storage units” that do not meet ASTM F2057-17 as posing a “substantial product hazard.” In concert with Buerkle’s announcement, CPSC’s Deputy Executive Director issued a letter to “Manufacturers, Importers, and Retailers of Clothing Storage Units” that effectively makes this existing voluntary safety standard mandatory. Continue reading

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