by Dave Schmitt
Companies manufacturing or distributing products in California should already be aware that California Prop 65 requires warning labels be affixed to all products containing substances which the State has identified as potential carcinogens or which may cause birth defects or other reproductive harm.
As described in more detail in a previous blog post, in January, 2015 California’s Office of Environmental Health Hazard Assessment (OEHHA) published two notices of proposed rulemaking regarding the State’s Proposition 65 warning regulations.
The first dealt with new content for “safe harbor clear and reasonable” warnings, as well as the responsibility for and methods of providing such warnings.
California also proposed a new regulation authorizing the agency to establish a website “to collect and provide information to the public concerning exposures to listed chemicals for which warnings are being provided.” If finalized as currently written, the new website regulation will require a product manufacturer, producer, distributor, or importer subject to Proposition 65 warning requirements, to provide to OEHHA, upon request, specific information regarding any product, listed chemical, potential exposure, and “any other related information that the lead agency deems necessary” for which a warning is provided. In a silver lining however, OEHHA expressly states that the proposed website regulation “is not enforceable by private plaintiffs,” in contrast to the warning regulations currently in effect and those being proposed.
After a series of public hearings, the State has now formally proposed the new content for Prop 65 warning labels. The proposed changes aren’t dramatic, but will require new labels once they become effective. For instance, the “new” labels will require a new icon featuring an exclamation point inside of a colored triangle. In addition, the word WARNING will be larger and in boldface.
Perhaps most importantly, the labels will be required to identify the specific substance that triggers the labeling requirement. For example, a “new” label might read:
Anyone wishing to submit written comments on the proposed changes must do so by April 26, 2016. Comments should be sent by email to: P65PublicComments@oehha.ca.gov
The new rules are slated to be finalized in November, 2016 and will take effect two years later, near the end of 2018. This should provide ample time for the affected businesses and industries to review their products and revise their Prop 65 warning labels.
Cors & Bassett will continue to monitor this rulemaking and will provide updates on the status of OEHHA’s proposed regulatory action. If you have any questions, please contact David Schmitt at 513-852-2587 or by email at firstname.lastname@example.org