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Consumer Protection & Privacy

Norton Rose Fulbright: California Proposition 65: OEHHA’S Proposed Revisions To Warning Regulations

By Jeff Margulies (US)

In March 2014, OEHHA began the rulemaking process to amend the Clear and Reasonable Warning requirements for California’s Proposition 65. The proposed changes caused a great deal of concern for manufacturers, distributors, and retailers doing business in California. On September 23, 2014, OEHHA circulated a revised draft to some of the stakeholders. While the proposed changes appear to be an improvement on the March edition, there still are some significant concerns in the business community. Here are highlights of the September draft.

Safe harbor warnings

The current Prop 65 warning regulation, in effect since 1989, provides a generic description of a “clear and reasonable” warning, and a series of “safe harbor” warning methods and messages that are deemed to be in compliance with the law.

OEHHA’s March 2014 proposal would have removed the safe harbor approach, and mandated that all warnings be given as specified. Following significant opposition, the September 2014 draft regulation returns to the safe harbor approach, by providing specific warning methods and messages, but allowing businesses to use other warnings.

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