On November 24, 2015, the Office of Environmental Health Hazard Assessment (“OEHHA”) issued proposed revisions to its January 15, 2015 draft Prop. 65 warning regulations. 27 CCR §§25600 et seq. The full text of the new draft regulations was published by the Office of Administrative Law on November 27.
OEHHA’s November draft proposes several changes to the January version, two of which stand out as significant.
1. Out With The “Dirty Dozen”
Existing regulations provide some guidance as to warning content, prescribing “safe-harbor” language designed to protect against Prop. 65 claims if used properly. They do not, however, require warnings to name any of the chemicals giving rise to the duty to warn (the “subject chemicals”). The January draft [§25602] changed that, specifying a list of 12 such chemicals that must be named if the warning is to achieve safe-harbor status. The November draft eliminated the list, but retained a truncated version of the chemical-naming requirement.
Under the new version [§25601(c)], safe harbor status is achieved if “one or more” of any of the subject chemicals is named in the warning. This is good news for those who sell products in California, as the November draft would eliminate the need to test for all 12 of the formerly listed chemicals to craft a warning that meets the chemical-naming requirement (which, by the way, does not apply to on-product warnings).
2. More Protection For Existing Inventory
The January draft [§25600(b)] provided a phase-in period of two years from the adoption of the new regulations. This was problematic because any products manufactured prior to adoption would have to be re-labeled if they were still on the shelves two years after adoption. The November draft [§25600(b)] fixed this problem, providing that products manufactured prior to adoption are protected indefinitely so long as their warnings comply with the prior (September 2008) regulations. Given that many products have shelf lives longer than two years, this change, if adopted, would avoid substantial – and wasteful – relabeling costs.
-- Brian Haughton and Julia Graeser
For more information, contact Brian Haughton at [email protected], (415) 228-5423, or Julia Graeser at [email protected], (415) 228-5481
New Draft Prop. 65 Warning Regulations: What Manufacturers and Suppliers Need to Know
December 3, 2015 / Brian Haughton and Julia Graeser