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California not just dreamin’ about expanding Prop. 65 product-notice requirements

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If a company makes, distributes, or sells consumer products—including food products—containing chemicals that might turn the leaves brown, proposed amendments to California’s Proposition 65 may saddle it with additional warning-notice requirements. Affected companies should respond not only by preparing to update their relevant product warnings, but also submitting comments on the state’s rulemaking while they still can.

Proposition 65 requires businesses with 10 or more employees to provide a “clear and reasonable” warning of possible exposure to the 900+ chemicals California has determined to cause cancer or reproductive toxicity. It authorizes the California attorney general, any district attorney, and certain city attorneys to enforce its provisions. But it also allows individuals—even those never harmed by or who even used the targeted product—to bring private enforcement actions that threaten (and often obtain) the recovery of attorneys’ fees.

Because businesses that display safe harbor warnings presumptively comply with Proposition 65, the display of such warnings can protect against these actions. But on October 27, California’s Office of Environmental Health Hazard Assessment (OEHHA) issued a notice of proposed rulemaking and announcement of public hearing on proposed amendments to Proposition 65’s warning requirements for consumer products, food products, internet sales, passenger or off-highway motor vehicle parts, and recreational marine vessel parts. The proposed amendments affect businesses that manufacture, package, distribute or sell products containing any of Proposition 65’s listed chemicals.

OEHHA’s proposed changes arise from its belief that the current warning requirements—which in their shortest form amount to little more than “WARNING: Cancer” with a website URL—suffer from overuse because this anodyne warning’s prophylactic benefit against aggressive private enforcement actions make it worthwhile to place on even products not known to contain a listed chemical.

OEHHA’s suggested amendments affect both long-form and short-form warnings. If adopted, companies would need to update not only the content of their warnings, but potentially the method of transmission, including for products sold online. OEHHA’s proposed amendments to short-form warnings for consumer products will require identification of the specific chemical exposure for which the warning is being given.

OEHHA scheduled a public hearing to receive comments about its proposed action, to be held both remotely and in person, on December 13. OEHHA will accept public comments until December 20. Companies on which these proposed changes will have a significant negative impact should consider submitting comments—perhaps suggesting a corresponding curb on private-enforcement actions—or attending the hearing to provide OEHHA with more context regarding the possible effects of its proposed regulations.