[This post follows up on our November 25, 2015 entry regarding new rulemaking under Proposition 65 (“Prop. 65”).]
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The “dirty dozen” is no more. But companies subject to Prop. 65 may not like what has taken its place. The newly revised Prop. 65 “safe harbor” warning regulation proposal contains several important substantive changes that, if adopted, will significantly impact California businesses, and any business whose reach extends into the state’s borders. Most notably, the new proposal would require the identification of at least one of the specific chemicals for which the exposure warning is being provided, from the list of over 900 chemicals identified by the state of California under Prop. 65.
Those who have followed the Prop. 65 rulemaking process this year may be aware that in January the Office of Health Hazard Assessment (“OEHHA”) proposed several new regulations, including developing a list of 12 chemicals – aka, “the dirty dozen” – that businesses would have been required to specifically identify when warning about exposure risks. Last week, however, OEHHA withdrew its prior proposal and replaced it with a new, more expansive proposal.
OEHHA now proposes to require a Prop. 65 warning in most instances to specifically identify one or more of the over 900 Prop. 65-listed chemicals for which the warning must be provided. While there are exceptions for some specific product and environmental exposure categories, the new warning regulation would apply to most consumer products and environmental exposures.
There are, however, two revisions aimed at providing business owners with some certainty as to potential future Prop. 65 litigation risk. First, the new regulation would establish that a warning provided pursuant to, and in compliance with, a court-ordered settlement or judgment is per se “clear and reasonable” for purposes of Prop. 65. For companies that have resolved Prop. 65 lawsuits through court-approved settlements, this proposed regulation should provide comfort that they can rely on their existing warning program to the extent a court has reviewed and approved it, even after the new regulations take effect.
Second, the newly proposed regulations would not apply to consumer products manufactured prior to the regulations’ effective date. For such products, the previous version of the Prop. 65 regulations (September 2008) would continue to apply. While including such a “no retroactive application” provision in the new regulations is logical, its codification will provide some finality for business owners in term of assessing their liability. However, businesses should be mindful that products manufactured before the effective date, but sold to consumers after that date, may still trigger notices of violation from private plaintiffs. Thus, it will be critical for businesses to be able to identify the manufacture date of consumer products they sell in California.