We often receive questions surrounding announcements from the Office of Environmental Health Hazard Assessment (OEHHA) that the agency is considering adding a chemical to the Proposition 65 List. There can be a substantial amount of confusion around these announcements, with many believing that the announcement means that there is enforcement with regards to the chemicals under consideration. The aim of this posting is to dispel some of the confusion around OEHHA announcements by explaining the announcements that are made by the lead agency at different stages during the listing process.
The first news about agency action can come in the form of an announcement that OEHHA’s scientific advisory panels, the Carcinogen Identification Committee (CIC) or Developmental and Reproductive Toxicant Identification Committee (DART), are being asked to advise on the relative priority certain chemicals should have for consideration to be listed. That announcement includes a request for public comment. There is then an announcement following the meeting as to what priority the committee advised each chemical should have. Currently perfluorodecanoic acid (PFDA) and its salts, perfluorohexanesulfonic acid (PFHxS) and its salts, perfluorononanoic acid (PFNA) and its salts, and perfluoroundecanoic acid (PFUnDA) and its salts are proceeding through the listing process as reproductive toxins. They made their debut in the listing process as part of a request from OEHHA to DART that they prioritize a list of 22 different chemicals for review at a December 10, 2020 meeting. Following the December 10, 2020 meeting the agency announced that the four preceding chemicals were marked “high priority.”
The next announcement from the agency in the listing process is the announcement that OEHHA is developing the technical material on the chemicals, the hazard identification material, to provide to the expert committees for their consideration of whether to list the chemicals. The agency again invites the public to comment including by contributing material for OEHHA to consider when assembling the hazard identification materials. The request for comment by OEHHA at this stage for PFDA, PFHxS, PFNA, and PFUnDA was announced on March 26, 2021 and the comment period closed on May 10, 2021.
After the agency assembles the hazard identification material it is published to the public on the agency website and in the California Regulatory Notice Register. The agency issues a notice on the availability of the hazard identification materials, which is typically accompanied by the announcement of the date of the meeting at which the listing of the chemical will be considered. The public is again given an opportunity to comment, this time directly on the materials. Public comment received on the materials is provided to the committee along with the hazard identification prepared by the agency. The agency published the hazard identification materials for PFNA and PFUnDA and their salts on November 5, 2021, announcing that the meeting for the consideration of their listing would be held on December 14, 2021. The agency has yet to publish the hazard identification materials for PFDA and PFHxS and their salts.
Following the listing of chemicals by the committees, the agency will formally announce the listing. The warning requirement for a newly listed chemical takes effect 12 months after the addition of the chemical to the Proposition 65 list, and that is when enforcement could start to take place. That does not mean that as long as a product is manufactured before the 12 months are up, the manufacturer is not subject to enforcement. If the product is somewhere in the stream of commerce and gets sold after the 12 month period expires, a warning is required to be given. For consumer product companies or retailers where supply is manufactured many months in advance, action needs to be taken to comply many months prior to the expiration of the 12 month period.
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