Almost two years ago, California Governor Jerry Brown announced a series of proposals to reform Proposition 65. These were going to include
• Capping or limiting private party enforcer attorney’s fees;
• Requiring a stronger showing by plaintiffs of evidence to support claims before litigation begins;
• Requiring greater disclosure of plaintiffs’ information to companies; and
• Requiring more useful information to the public on what they are being exposed to and how they can protect themselves.
He then turned the process over to OEHHA, the lead agency for Proposition 65. After taking one flyer at proposed regulations in May, 2014, OEHHA has now proposed regulations that achieve none of Governor Brown’s proposed goals, while potentially making a company's use of the Proposition 65 “Safe Harbor” warnings much more onerous. After the jump, CBL wil describe what has happened so far.
Proposition 65 prohibits anyone in the course of doing business from knowingly and intentionally exposing a person in California to a chemical known to the State to cause cancer or reproductive harm without giving a clear and reasonable warning. For years, the warning regulations have provided that the following text is deemed to be clear and reasonable for product warnings:
For listed carcinogens:
WARNING: This product contains a chemical known to the State of California to cause cancer.
For reproductive / developmental toxicants:
WARNING: This product contains a chemical known to the State of California to cause birth defects or other reproductive harm.
Furthermore, the regulations deem transmission of a product warning to be clear and reasonable if placed on a “label or labeling,” and define “labeling” as “any label or other written, printed or graphic matter affixed to or accompanying a product or its container or wrapper.” Based on all of this, many companies comply with Proposition 65 warning requirements by placing one or both of the above safe harbor warnings in their manuals, use and care guides or other literature.
It looks as though much of this common practice may have to change in 2 1/2 to 3 years.
THE PROPOSED NEW SAFE HARBOR WARNINGS
OEHHA has listed twelve chemicals or chemical categories which, under its proposal, must in some instances be specifically identified if a warning is to have "safe harbor" status. These are:
Acrylamide (primarily a byproduct of cooking food), phthalates (the most common category in Proposition 65 claims, and including DEHP and the recently listed DINP), lead (the second most common chemical in Proposition 65 notices), Chlorinated Tris (including the flame retardants TDCPP and TCEP), arsenic, benzene, cadmium, carbon monoxide, formaldehyde, hexavalent chromium, mercury and methylene chloride.
Under the proposed regulations, an exposure to one of these chemicals must in many instances be preceded by a warning specifically naming the chemical if the warning is to be deemed a “safe harbor” warning.
And overall, the safe harbor warnings have been revised. They now require the use of a yellow triangle with an exclamation point in the middle, and the following language for listed carcinogens:
WARNING: This product can expose you to a chemical [or chemicals] known to the State of California to cause cancer. For more information go to www.P65Warnings.ca.gov/product.
(Note to CBL readers – no need to click the link, the site doesn’t exist yet and we don’t know what it will include).
For reproductive toxins, it’s this:
WARNING: This product can expose you to a chemical [or chemicals] known to the State of California to cause birth defects or other reproductive harm. For more information go to www. P65Warnings.ca.gov/product.
For products containing both carcinogens and reproductive toxins, or chemicals listed as both, there is now an officially sanctioned combined warning:
WARNING: This product can expose you to a chemical [or chemicals] known to the State of California to cause cancer and birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov/product.
But what about the twelve special chemicals and chemical groups? If a company wants safe harbor status, there are two options. Here is the first, for both cancer and reproductive toxins:
WARNING: This product can expose you to acrylamide, DEHP, DINP, lead, TDCPP, TCEP, arsenic, benzene, cadmium, carbon monoxide, formaldehyde, hexavalent chromium, mercury or methylene chloride, chemicals known to the State of California to cause cancer and birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov/product.
Or, there are the “truncated” warnings. Here, OEHHA apparently seeks to make sure consumers get information that is not accurate and not helpful, but punishes companies for producing products with listed chemicals and not wanting to give longer warnings. The proposals give companies an option of using one of these:
WARNING: Cancer. www.P65Warnings.ca.gov/product
or
WARNING: Reproductive Harm. www.P65Warnings.ca.gov/product
or
WARNING: Cancer andReproductive Harm. www.P65Warnings.ca.gov/product
The word “WARNING” has to be bold and in at least ten point font. The other words have to be at least eight point font.
HOW TO TRANSMIT THE WARNINGS
The current regulations provide for a “warning that appears on a product’s label or other labeling,” store signage or shelf labeling, or a system of signs and public advertising identifying “the system and toll free information services.” The proposed regulations provide for labels (with requirements we will discuss below), a shelf tag or shelf sign “in a font no smaller than the largest type used for other information on the shelf tag or . . . signs for the same or similar products,” or a “product-specific warning provided via any electronic device or process that automatically provide the warning to the purchaser prior to or during the purchase of the product, without requiring the purchaser to seek out the warning.”
The proposed regulations also provide requirements for internet purchases:
For internet purchases, the warning message must be provided by a clearly marked hyperlink on the product display page, or otherwise prominently displayed to the purchaser before the purchaser completes his or her purchase of the product. For purposes of this Article, a warning is not prominently displayed if the purchaser must search for it in the general content of the website.
This is an enormous change. Currently, a manufacturer or distributor must label the product with a warning before it goes to the on-line retailer, and the retailer has no further obligations. A manufacturer or distributor with its own on-line sales channel can label the product, and the buyer will see the warning when he receives the ordered product. Under the proposal, this labeling will be inadequate to protect the seller, who must also add web links for every product that requires a warning.
The proposal also adds a catalogue warning provision:
For catalog purchases, the warning message must be provided in the catalog in a manner that clearly associates it with the item being purchased.
The biggest change, however, is the apparent elimination of Manuals and Use and Care Guide warnings as “safe harbor” warning transmission. Here is what has happened:
The current regulations allow a warning to be provided on the “labeling.” Previous California appellate authority has held that since “labeling” is any printed communication, then the warning may be transmitted on any printed material, and many companies choose to include the warnings in their use and care guides.
But the new section on transmission has changed, and now provides for transmission on “a label on the product.” This seems to exclude use and care guides and other written material as media for conveying the safe harbor warning.
NOW WHAT?
These proposals have a long regulatory process to go through before any changes become effective. We estimate the minimum time for the changes to become effective is 30 months. The following are key dates and details in the process:
Public Hearing: March 25, 2015, 10:00 – Noon, Coastal Hearing Room, California Environmental Protection Agency Building, 1001 I Street, 2nd Floor, Sacramento, California.
The public comment period is open, and comments must be received by OEHHA by 5:00 p.m. on April 8, 2015, the designated close of the written comment period.
Send e-mail comments to [email protected]. Please include “Clear and Reasonable Warning Regulations” in the subject line.
Hard-copy comments may be mailed, faxed, or delivered in person to the appropriate address below.
Monet Vela
Office of Environmental Health Hazard Assessment
P. O. Box 4010
Sacramento, California 95812-4010
Telephone: 916-323-2517
Fax: 916-323-2610
E-mail: [email protected]
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