Generally speaking, Proposition 65 and the related regulations issued by Office of Environmental Health Hazard Assessment (“OEEHA”) have sought to make the most upstream companies involved in selling products containing Proposition 65-listed chemicals primarily responsible for providing California consumers with cancer or reproductive harm warnings. As regular readers of CalBizLit are aware, the regulations taking effect August, 2018, including 27 CCR Section 25600.2, provided that if it met certain notification and other standards, a manufacturer, importer, distributor or other company selling such a product could shift the responsibility to retailers by meeting certain requirements, including providing them with product-specific information and warning labels or other tools.
In November, 2018, soon after that regulation took effect OEHHA proposed a regulation that would allow companies to shift this responsibility to many companies other than retailers. This new iteration of Section 25600.2 was recently approved by the California Administrative Law Department (always a requirement for issuing regulations), and will be in effect on April Fool’s Day (yes, April 1), 2020.
Specifically, the new regulation allows a manufacturer, producer, packager, importer, supplier or distributor of a product to comply with the law 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,” so long as the business has ten or more employees. As before, the written notice is to include the following:
- A statement that the product may result in an exposure to one or more listed chemicals;
- The exact name, description or specific identifying information for the product (the latter described as the Universal Product Code or other identifying designation); and
- All necessary warning materials, including labels, labeling, shelf signs or tags, and the warning products required for products sold in on the internet.
The notice must be renewed annually, and the sender of the notice must receive electronic or written receipt of the notice. And it must be sent to and receipt provided for the “authorized agent,” for either the person to whom the sender provides the products, or the retail seller. And this means a person designated as authorized agent by the company. If the business has not designated an authorized agent, the company can serve the notice on the legal agent for service or process.
In a nutshell, if a product manufacturer, supplier, distributor or importer carefully complies with all the regulatory requirements, it can safely shift the entire Proposition 65 requirements to its customer if it chooses to do so.
Comments