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.
In its Initial Statement Of Reasons, OEHHA explains the proposed change as follows:
This clarification is needed because in some situations, the original manufacturer, distributor, importer, orothers in the chain of commerce may not know where or by whom the product will ultimately be sold to a consumer. Thus, OEHHA intends to clarify that a given business in the chain of commerce need only provide the notice and warning materials directly to the designated agent for the business to whom it is transferring or selling the product, or provide the notice and warning materials to the retail seller in order to discharge their duty to warn under the Act.
In another change, OEHHA deals with the chronically asked questions “what in the heck is an authorized agent?” and “authorized for what?” In its amendment late last year, OEHHA added the following definition in 27 CCR §25600.1(a):
“Authorized agent” means the person or entity, including a monitored electronic mailbox or post office box, designated by a retail seller to receive notices from product manufacturers, producers, packagers, importers, suppliers, and distributors under this article.
In other words, it seemed that the retailer had to specifically designate an “authorized agent” to receive notice that the warning burden shifting was required. This doesn’t seem too likely. So the addition of §25600.2(c)(2) is as follows:
Where a business has not designated an authorized agent, the manufacturer, producer, packager, importer, supplier, or distributor may serve the notice on the legal agent for service of process for the business.
In other words, if the regulation changes take effect, a seller will be able to shift the warning burden to its immediate business customer whether or not the latter is a retailer by providing the required information and material either to an agent specifically designated for that purpose or to the customer’s agent for service of process.
These are big changes for non-retailer businesses. And CBL will keep its readers updated as the regulation changes progress.
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