California's Office of Environmental Health Hazard Assessment (OEHHA) has proposed sweeping changes to the warning requirements under the state's Safe Drinking Water and Toxic Enforcement Act of 1986, better known as Proposition 65.
The proposed changes were made in response to Governor Jerry Brown's proposal in May 2013 to reform Proposition 65 to reduce unnecessary litigation and "require more useful information to the public on what they are being exposed to and how they can protect themselves."
California voters passed Proposition 65 in 1986 in hopes of addressing their concerns about exposure to toxic chemicals and risk of developing cancer, birth defects, or other reproductive harm. Under Proposition 65, companies doing business in California must notify Californians about significant amounts of chemicals in the products they purchase, for use in their homes or workplaces, or that are released into the environment, through the use of warnings such as product labels or safety data sheets. Enforcement of Proposition 65 is done by the California Attorney General's Office or "any individual acting in the public interest" who can bring a lawsuit against the allegedly offending company.
On March 7, 2014, OEHHA, the state administrative agency tasked with enforcing Proposition 65, released its "pre-regulatory draft" of proposed changes to the warning requirements found under Title 27, Article 6 of the California Code of Regulations. The proposed changes would basically replace the current provisions of Article 6 with provisions designed "to improve the quality of Proposition 65 warnings while providing both flexibility and certainty for businesses." These changes include:
- Requiring warnings to specifically identify the following 12 chemicals: acrylamide, arsenic, benzene, cadmium, chlorinated tris, 1,4-dioxane, formaldehyde, lead, mercury, phthalates, tobacco smoke, and toluene.
- Requiring certain language to be used in warnings issued pursuant to Proposition 65, including specific language on products for consumer and occupational use.
For products used in the occupational setting, labels would have to include all of the following:
- The international health hazard symbol.
- The word "WARNING" in all capital letters and bold print.
- For exposures to listed carcinogens, the words "Using this product will expose you to a chemical[s] known to the State of California to cause cancer. For more information, ask your employer to go to www.P65Warnings.ca.gov."
- For exposures to listed reproductive toxins, the words "Using this product will expose you to a chemical[s] known to the State of California to cause birth defects or other reproductive harm. For more information, ask your employer to go to www.P65Warnings.ca.gov."
- For exposures to listed carcinogens and reproductive toxins, the words "Using this product will expose you to a chemical[s] known to the State of California to cause cancer and birth defects or other reproductive harm. For more information, ask your employer to go to www.P65Warnings.ca.gov."
- The name of the chemical[s] identified in section 25605 where a warning is required for such exposure (i.e., the 12 chemicals listed above such as benzene and toluene).
The proposed changes do contain a provision wherein products covered by a court approved settlement prescribing warning content entered prior to January 1, 2015, would not be subject to the proposed changes.
OEHHA has cautioned that its proposed changes are merely for discussion and that the "potential regulation may change substantially prior to the eventual initiation of a formal regulatory proceeding."
However, if and when the proposed changes are formally adopted (which is currently anticipated for early summer 2015), the applicability of the changes to out-of-state manufacturers and distributors of products covered by the Federal Hazardous Substances Act ("FHSA") is questionable. Courts, including California, have already recognized that the FHSA expressly preempts all state mandated precautionary labeling that is not identical to that required by the FHSA. (See, e.g., People ex rel. Lungren v. Cotter & Co. (1997) 53 Cal.App.4th 1373, 1387.) Therefore, if a particular substance is already being regulated by the FHSA, then the proposed changes may not apply.