OEHHA PROPOSES TO MODIFY SAFE HARBOR WARNING REGULATIONS YET AGAIN

As known by just about every business aiming to comply with California’s Proposition 65, and to avoid enforcement actions by bounty-hunters, OEHHA issued dramatically changed its safe harbor warning regulations recently, completely replacing the traditional, historic “WARNING, this product contains chemicals known to the State of California . . . “ etc. with a much more complex set of warning text and transmission requirements that must be met if companies want their warnings to be deemed “clear and reasonable” and essentially immune from enforcement litigation. The new regulations were issued in 2016, revised in November, 2017, and were effective as to any products manufactured on or after August 30, 2018. Cal Biz Lit’s full discussion of the most recent version of the regulations can be found here and in the posts that follow.

And now, OEHHA has proposed additional amendments that substantially increase the ability of businesses to shift warning responsibilities to others. The full proposed changes can be seen here. OEHHA’s Initial Statement of Reasons is here.

It’s hard to tell when these will become effective, but if they do, it will be next year sometime. Public comments can be made until December 31. If anyone wants a public hearing, they have until December 17 to request it.

The most significant changes are these:

As originally in effect in the new regulations as of August of this year, a manufacturer, distributor or importer could shift the burden of warning only by directly providing notice to retailers with ten or more employees, together with a warning shelf sign or warning labels. The detailed and specific requirements are in 27 CCR § 25600.2. The shifting could only be achieved by sending the required items to retailers. But now, OEHHA proposes to make the following change (underlined) to §25600.2(b):

The manufacturer, producer, packager, importer, supplier, or distributor of a product may comply with this article either by providing a warning on the product label or labeling that satisfies Section 25249.6 of the Act, or by providing a written notice directly to the authorized agent for the business to which they are selling or transferring the product or to the authorized agent for a retail seller who is subject to Section 25249.6 of the Act [meaning it has ten or more employees] .

More after the jump.