California’s Safe Drinking Water and Toxic Enforcement Act of 1986 [Cal. Health & Safety Code §25249.5 et seq.], known as Prop. 65, has created numerous hurdles for manufacturers and distributors who want to sell their products to the expansive California market. On January 12, 2015, the Office of Environmental Health Hazard Assessment (“OEHHA”) released proposed modifications to Prop. 65 which, if adopted, would make those hurdles even larger, especially for those in the food industry.
Prop. 65 already requires businesses to warn the public when they sell a product, or maintain a premises, in California which contains certain chemicals (a list of over 900) known to cause cancer or birth defects or other reproductive harm. If a product sold or premises maintained in California contains a listed chemical and a reasonable warning is not posted on or near the product at its point of sale or the premises, Prop. 65 provides that businesses can be subject to enforcement lawsuits by the Attorney General or citizens, which commonly seek statutory penalties paid to the State and attorneys’ fees.
These suits have continued to increase since Prop. 65 was enacted, as self-proclaimed watchdog firms profit greatly from them, while businesses suffer significant expense defending and resolving these citizen suits.
The newly proposed regulations take aim at Article 6 of Prop. 65, which governs the requirements and methods for providing the necessary warnings to insulate parties from citizens suits. On first blush, they require a change to the language that has been deemed reasonable for decades, add the use of a pictogram for signaling the perceived danger of the exposure, and require increased language parity for products sold with other languages on the labels.
However, the proposed regulations go further than simply changing the form of warnings; the regulations also address other types of exposures and responsibilities under Prop. 65 that were either not addressed before, or only marginally addressed, for example, food & dietary supplements and petroleum product industrial emissions. The new regulations will have a significant impact on a number of businesses and industries. For those in the food industry, an audit of their food products and facilities will be essential to putting protocols in place to limit exposure.