The California Office of Environmental Health Hazard Assessment (OEHHA) has announced that it is considering implementation of the most significant changes to Prop. 65 regulations in more than two decades. OEHHA has posted the draft regulation and Initial Statement of Reasons on its website.
Passed by voters in 1986, Prop. 65 requires warnings prior to exposures to chemicals listed by OEHHA as “known to the State” to cause cancer or reproductive harm. The law, which carries the potential penalty of $2,500 for each violation, may be and routinely is enforced by entrepreneurial private plaintiffs who are permitted to bring legal actions against alleged violators with minimal evidence. OEHHA’s proposed regulations will affect almost every industry subject to Prop. 65 and nearly every aspect of compliance. In all but a few cases, OEHHA’s changes have the capacity to make compliance with Prop. 65 costlier, riskier, and more disruptive to companies doing business in California.
Four Important Provisions Affecting Food and Dietary Supplements
In its far-reaching proposal, OEHHA aims a number of significant changes directly at food and dietary supplement manufacturers, distributors, and retailers. Four specific proposals stand out as impactful for the industry:
What You Can Do
Businesses which stand to be affected by OEHHA’s plans, including those operated out of state, have an opportunity to voice their concerns to the agency.
OEHHA is accepting written comments from the public until May 14, 2014. Unless OEHHA is convinced to delay or withdraw its plans, formal regulations will likely be proposed in the summer of 2014.
Because OEHHA’s proposals are currently in the preliminary stages, interested parties have a time critical opportunity to engage the agency and encourage it to address specific concerns. Companies that manufacture distribute, or retail dietary supplements in California should consider retaining experienced counsel to analyze the impact of the proposals on their business and to participate in the public comment period on their behalf. Given the potentially far-reaching consequences of the proposed changes on the individual companies and the industry at large, interested parties should be diligent in bringing their concerns to OEHHA as early and as persuasively as possible.
This GT Alert was prepared by James Mattesich, Justin Prochnow, Anthony Cortez and Greg Sperla.
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