Prop 65 Reforms ‘Would Burden Business’

Recently proposed Proposition 65 reforms would place major new burdens on business, attorneys with Morrison & Foerster have argued.

Writing for Lexology, Michael Steel and Dan Gershwin say that a pre-regulatory draft of proposed changes to Prop. 65 regulations, released by the California Office of Environmental Health Hazard Assessment on March 7, would require businesses to prepare and submit detailed public reports for every Prop. 65 warning they issue.

The reports would identify products covered, type of occupational and environmental exposure, chemical names and predicted exposure routes, and provide information on anticipated levels of human exposure and actions people can take to minimize exposure. Reports would be due within 30 days of a business becoming aware that a warning is required, or when information needs to be updated. 

Factual disputes over what constitutes compliance will likely lead to more Prop. 65 lawsuits, Steel and Gershwin say.

But they acknowledge that the proposed rules will give small retail businesses a “limited opportunity” to fix minor violations, as Environmental Leader previously reported. 

The OEHHA is also proposing new mandatory warning language, toxicity symbols, and listing of the agency’s web address, as well as required labeling of 12 chemicals.

These are acrylamide; arsenic; benzene; cadmium; chlorinated tris; 1, 4-Dioxane; formaldehyde; lead; mercury; phthalates; tobacco smoke; and toluene.

OEHHA developed the draft changes in response to governor Jerry Brown’s proposal to reform Prop. 65 to, among other things, “require more useful information to the public on what they are being exposed to and how they can protect themselves,” Mark Anstoetter and Madeleine McDonough of Shook Hardy & Bacon LLP.

Last October Brown signed a bill that weakens Prop. 65 somewhat, in an effort to reduce what he called frivolous lawsuits and fines for businesses. AB 227 gives business receiving a notice of Proposition 65 violation two weeks to post the required notices on the presence of toxic chemicals and pay a $500 fine before they can be subject to lawsuits or bigger penalties.

OEHHA is holding a public workshop on the latest proposed changes April 14 in Sacramento, and the agency is also accepting written comments until May 14.

It aims to formally propose the new rules this summer and adopt final regulations by summer 2015, Steel and Gershwin say.

Takeaway: While recent legislation reduced Prop. 65’s burden on business somewhat, attorneys have argued that the latest round of changes will increase that burden once again.