California Prop. 65 Warning Regulation Revisions Moving Closer to Final

Shannon Nessier
May 19, 2016

In the ongoing process of finalizing updated warning language for California’s Prop. 65 (Safe Drinking Water and Toxic Enforcement Act of 1986), the Office of Environmental Health Hazard Assessment (“OEHHA”) has issued a notice of further revisions to the third proposed version of the statutory language.

This regulation was originally the subject of a Notice of Proposed Rulemaking on November 27, 2015, which repealed a January 16, 2015, Notice, and provided fairly significant changes from the January 2015 issuance.   After accepting written comments and holding a public hearing, on March 25, 2016, OEHHA published a Notice of Modification of the proposed regulation.  OEHHA then accepted a second round of written comments, and this notice responds to those comments and provides further revisions.

OEHHA’s focus on refining the regulatory language since the first issuance in January 2015, allowing stakeholders repeated opportunities to comment, and making steady progress on revision efforts suggests it intends to finalize the proposed regulation by the one year deadline, which runs on November 27, 2016.  Once enacted, stakeholders will have two years to implement any new requirements.

The changes to the proposed regulation continue to refine the language and mode of traditional per se reasonable Prop. 65 warnings, add categories of people obligated to provide warnings, and clarify issues related to stream of commerce relationships and indemnity under Prop. 65.  The redlined text of the recent revisions can be found here.