DLA Piper: Warning – California Proposes Major Changes for Proposition 65 Warnings: Take Part in the Process

By George Gigounas and Christian Orozco

The California agency that implements Proposition 65 – perhaps the nation’s highest-profile consumer product toxics law – has proposed far-reaching changes to the now-familiar warnings required under that statute. 

California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) would radically revamp Proposition 65 (The Safe Drinking Water and Toxic Enforcement Act of 1986) to require warnings that specifically identify key toxic chemicals, hyperlink to OEHHA information and use more forceful language that differs for food versus other consumer products. 

All food and consumer product businesses doing business in California are well advised to track the progress of these proposals and plan carefully for their implementation. 

Proposition 65 requires businesses to provide warnings when their products “expose” Californians to a long list of chemicals the state has determined cause cancer or reproductive harm.  These warnings have become a ubiquitous sight in California (e.g., “WARNING: This product contains a chemical known to the State of California to cause cancer and reproductive harm”).  If adopted, OEHHA’s regulatory changes would dramatically alter these warnings for the first time in decades.

With US$785,000 in additional funding directed by the governor’s office, OEHHA has proposed to require warnings to:

1.      Specifically disclose 12 common Proposition 65-listed chemicals that require warnings, such as lead and mercury, in the text of the warning

2.      Provide a link to a new OEHHA website to allow the public to access more information relating to each product warning, including additional chemicals, routes of exposure and, if applicable, any actions that individuals could take to reduce or avoid the exposure and

3.      Differentiate consumer products and foods

12 KEY CHEMICALS TO BE IDENTIFIED IN WARNINGS

Long requested by consumer advocate organizations, OEHHA’s proposed regulations would require warnings to specifically identify exposures to at least 12 key chemicals (or combinations) “commonly found in consumer products, including foods”:

       acrylamide

       arsenic

       benzene

       cadmium

       chlorinated tris

       1,4-dioxane

       formaldehyde

       lead

       mercury

       phthalates

       tobacco smoke and

       toluene 

The process OEHHA used to develop this initial list is not clear.  But OEHHA states the list is not static or exhaustive and is likely to grow

As the final proposed regulations were developed, consumer product businesses contested specifying these 12 chemicals on warnings for two reasons.  First, businesses fear consumers would not understand the relative risks, uses or properties of these listed chemicals, making informed consumer responses difficult.  For instance, while consumers might understand and respond easily to warnings regarding lead or tobacco smoke, warnings about chlorinated tris or 1,4-dioxane might draw less-informed responses.  Second, warnings will become lengthier and potentially quite cumbersome, particularly if a product contains three or four listed chemicals.  OEHHA, however, discounts this risk and does not anticipate that warnings will contain more than one or two chemicals on the list.

OEHHA WEBSITE AND OBLIGATIONS

OEHHA plans to launch a revamped website to provide the public with a greater volume of consumer-friendly Proposition 65 information. 

The proposed regulations would require a business implementing a Proposition 65 warning to inform OEHHA within 30 days of:

       The name and contact information for the person providing the warning and the manufacturer of any product the warning is intended to cover

       The specific products or category the warning covers, including barcodes, if any

       The type of occupational exposure the warning is intended to cover, if any

       The type of environmental exposures the warning is intended to cover, if any, and the affected area

       The chemical or chemicals for which the warning is being provided

       Whether the warning is for cancer, or reproductive harm, or both

       The anticipated pathways of exposure for which the warning is being provided

       Reasonably available information concerning the anticipated level of human exposure to the listed chemical, if known

       Information concerning actions a person can take to minimize or eliminate exposure to the listed chemical, if any and

       Whether the warning is being provided in any language other than English and a copy of the translated warning, if any.

The revamped OEHHA website would be populated using this new information.  Moreover, these major new information reporting burdens would rest entirely on individual businesses.  While businesses could coordinate some reporting information through trade groups or other organizations, the OEHHA website reporting requirements would create major new expenses for consumer product businesses selling in California.

MORE FORCEFUL WARNING LANGUAGE, AND DIFFERENCES FOR FOOD AND CONSUMER PRODUCTS

OEHHA’s proposed regulations significantly change the now-familiar warning message: “WARNING: This product contains a chemical known to the State of California to cause cancer and reproductive harm.”  The phrase “will expose you to” would replace the word “contains.”  OEHHA concludes the word “contains” does not sufficiently clarify that individuals will actually be exposed to a chemical if they use a given product.  Businesses have objected to the new phrase, believing it will cause unnecessary distress and inaccurately imply that an “exposure” will occur in every use of the given product.

For consumer goods, the proposed regulations would require the international health hazard symbol in warnings.

OEHHA asserts this symbol will make warnings more effective.

Food products would not need this or any other symbol because, OEHHA reasons, food product labeling does not generally include pictograms.  Instead, OEHHA would require food warning labels messages to add the word “consuming,” resulting in the phrase: consuming this product will expose you to…

For both consumer product and food warnings, OEHHA regulations would clarify:

       Responsibility for compliance rests with the manufacturer, producer, distributor, or packager of the consumer product or food

       Warnings must use one or more of the following methods, singly or in combination:

  • Warning on product’s label
  • For Internet purchases, warning before the consumer completes purchase
  • For catalog purchases, warning in a manner that associates the warning with the item being purchased
  • For store purchases, a shelf sign
  • Product-specific warning via electronic means that does not require the consumer to seek out the warning and
  • Listing any of the 12 specified chemicals that are applicable.

SOME FLEXIBILITY FOR INDUSTRY 

While onerous and expensive, the proposed regulations would provide some minimal flexibility and an opportunity to prepare for compliance.  OEHHA would provide the opportunity to propose product-specific, area-specific or chemical-specific warnings that deviate from the regulatory standard, subject to OEHHA approval.  In theory, this flexibility would allow tailored warnings where the regulatory provisions are lacking.  The new regulations also would provide a grace period, recognizing court-approved settlements with warning content before January 1, 2015. 

ADDING YOUR VOICE

Finally, the proposed regulations are still just that – proposed, and under discussion. Businesses still have the opportunity to provide comments and input as the process moves ahead. 

Those interested in commenting on possible revisions to OEHHA’s proposed regulatory changes should note the following timeline:

       Pre-regulatory public workshop – April 15, 2014

       Formal regulation proposal – early summer 2014

       Final regulation adoption – early summer 2015

       Website development – concurrent with regulatory process. 

Businesses interested in participating in the comment process can contact: 

George Gigounas

Christian Orozco

This information is intended as a general overview and discussion of the subjects dealt with. The information provided here was accurate as of the day it was posted; however, the law may have changed since that date. This information is not intended to be, and should not be used as, a substitute for taking legal advice in any specific situation. DLA Piper is not responsible for any actions taken or not taken on the basis of this information. Please refer to the full terms and conditions on our website. 

Copyright © 2014 DLA Piper. All rights reserved.

For more information about LexisNexis products and solutions, connect with us through our corporate site.