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CA Modifies Proposed Amendment on Prop 65 Warning Requirements

October 31, 2019

In November 2018, California’s Office of Environmental Health Hazard Assessment (OEHHA) proposed amending Article 6, Section 25600.2 of Title 27 of the California Code of Regulations.  This provision speaks to the responsibility to provide consumer product exposure warnings for chemicals listed under California’s Proposition 65. The amendment was proposed to clarify how a product manufacturer—and other parties that may receive the products before they reach the retailer—can pass warning information along the supply chain and ultimately to retailers. After reviewing the comments received on that proposal, OEHHA modified the proposed regulation on October 4, 2019.  A notice of the modifications can be found on OEHHA’s website.

By way of background, Proposition 65—also known as the Safe Drinking Water and Toxic Enforcement Act of 1986—prohibits knowingly exposing any individual to a listed chemical without first providing a “clear and reasonable warning” to such individual. A final rule on the manner and content for providing “clear and reasonable warnings” required under Proposition 65, once businesses determine that a warning is required, became effective in August 2018.

One purpose of the most recent revisions (found here) is to clarify the circumstances under which a retailer has “actual knowledge” of the potential consumer exposure that would require  a warning under Proposition 65.  The proposed modification to the definition of “actual knowledge” are intended to clarify that (a)  the level of specificity for “actual knowledge” is the amount of knowledge necessary to identify the specific products that cause the consumer product exposure and (b) knowledge can flow from  the retail seller, its authorized agent, or a person whose knowledge can be imputed to the retail seller (rather than any employee).  OEHHA has stated that the revisions are not intended to expand or reduce the scope of the current definition but merely to clarify the existing regulation.   

The most recent modifications to the clear and reasonable warnings required under Proposition 65 echo previous comments from OEHHA regarding the need to make responsibilities for communication within the supply chain more transparent.