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California Proposes Listing Individual Chemicals in Prop 65 Warnings

January 6, 2016

The California Office of Environmental Health Hazard Assessment (OEHHA) announced that it would not proceed with a regulation proposed in January 2015 to replace the current regulatory warning requirements under Proposition 65, which included a requirement to identify a subset of Prop 65-listed chemicals in the required warning.  Rather, OEHHA retracted the proposal and issued a new requirement which expands the requirement to identify the subset of chemicals to include all Prop 65-listed chemicals.

Prop 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. The current warning requirements are found in Article 6 in Title 27 of the California Code of Regulations. The new proposed warning requirements, published on November 27, 2015, would require including one or more of the listed chemicals for which the warning is being provided in the text of the warning, unless it is an on-product warning that is exempted. The regulation proposed in January only required identifying 12 listed chemicals in the warning.

OEHHA explained that during the pre-regulatory process, many commenters expressed concern about including chemical names in the warnings. However, after commissioning a Warning Regulations Study, OEHHA said it “determined that providing the name of a listed chemical in all warnings is consistent with and furthers the ‘right-to-know’ purposes of the statute and provides more specificity regarding the content of safe harbor warnings.”

In addition to requiring the names of listed chemicals, the proposed regulation prescribes specific methods for communicating warnings under Prop 65, such as requiring the phrase that a person "can be exposed" to a listed chemical and the inclusion of a URL for a Lead Agency Website. The November version added an exception to the new warning requirements for items manufactured before the new rule is implemented. It also specifically states that the new warning requirements do not apply to items impacted by previous court-ordered settlements.

Several changes to the warning requirements in the more recent version impact food products. These include the requirement that the warning on a product label must be enclosed in a box to set it off from other surrounding information, and that the word “WARNING” is in all capital letters and bold print in a font no smaller than the largest type size used for other consumer information on the product.

The proposed Regulatory Text, Initial Statement of Reasons, and other information related to the proposed Article 6, Clear and Reasonable Warnings can be found on OEHHA’s website. For more information on the January version, see the PackagingLaw.com article, More Lawsuits Likely under California’s Proposed Prop 65 Warnings, Says Industry.