California's Prop. 65 Labor Code Listing Mechanism Explained in Proposed Regulation
Earlier this year, California's Office of Environmental Health Hazard Assessment (OEHHA) proposed amending the regulations adopted pursuant the state's Safe Drinking Water and Toxic Enforcement Act of 1986 (commonly known as Proposition 65) to clarify the way in which OEHHA identifies potential chemicals to be added to the Proposition 65 list via the Labor Code. Proposition 65 requires the governor of California to publish, at least annually, a list of chemicals "known to the State to cause cancer or reproductive toxicity."
Under Proposition 65, chemicals are required to be listed if they are: (1) identified by reference to certain subsections of the California Labor Code, (2) identified by the state's qualified experts, (3) identified by designated authoritative bodies, or (4) "formally required" to be labeled or identified as causing cancer or reproductive toxicity by a state or federal agency. OEHHA has previously adopted regulations explaining the criteria used for listing chemicals via all of the mechanisms, except the Labor Code.
The proposed regulation seeks to explain two ways in which OEHHA would name substances for listing via the Labor Code. Section 25905, paragraph (a)(1), would identify substances that have been evaluated by the World Health Organization's International Agency for Research on Cancer (IARC) and have been found to cause cancer. Paragraph (a)(2) would identify substances that are "within the scope" of the Federal Hazard Communication Standard. The relevant text of proposed Title 27 California Code of Regulations Section 25904 reads as follows:
(a) . . . . [A] chemical shall be included on the list of chemicals known to the state to cause cancer or reproductive toxicity if it is a substance identified by reference in Labor Code Section 6382(b)(1) or by reference in Labor Code Section 6382(d) as causing cancer or reproductive toxicity.
- A substance shall be included on the list if it is identified by the International Agency for Research on Cancer in its IARC Monographs series on the Evaluation of Carcinogenic Risks to Human (most recent edition) as:
(A) Carcinogenic to humans (Group 1), or
(B) Probably carcinogenic to humans (Group 2A) with sufficient animal evidence, or
(C) Possibly carcinogenic to humans (Group 2B) with sufficient animal evidence.
- A chemical shall be included on the list if it is within the scope of the Federal Hazard Communication Standard and is identified in the most recent version of Title 29 of the Code of Federal Regulations, part 1910.1200, adopted by the federal Occupational Safety and Health Administration, as causing cancer or reproductive toxicity on sufficient animal or human evidence.
This OEHHA proposal is responding to changes to the federal Hazard Communication Standard regulations found in Title 29 of the Code of Federal Regulations, section 1910.1200 (effective May, 2012), and also is based on the Agency's interpretation of recent California court decisions addressing various legal questions related to the Labor Code listing mechanism.
OEHHA first proposed adding Section 25904, "Listings by Reference to the California Labor Code," on January 31, 2014, following a pre-regulatory public workshop and written public comment period both of which took place in 2012. The latest version of the proposed regulation was published on September 12, 2014, following two comment periods and a public hearing in March. The most recent proposal amends the regulation to delete language stating that chemicals would remain on the Proposition 65 list pending committee review, even after OEHHA determined that a listed chemical no longer meets the requirements for listing. More information can be found on OEHHA's website.