The 30-year-old Prop. 65 law requires businesses to disclose the presence of chemicals known by the state to cause cancer or reproductive harm. The Prop. 65 list currently includes more than 800 chemicals. This means Californians see the signs and labels, “Warning: this product contains a chemical known to the state of California to cause cancer,” nearly everywhere, from gas stations to Starbucks.
Today, a new regulation goes into effect that allows California’s Office of Environmental Health Hazard Assessment (OEHHA) to develop a website that provides consumers with additional information about the Prop. 65 warnings, including the name of the listed chemical in the product or service, its concentration and the estimated level of exposure.
OEHHA is also proposing changes to the Prop. 65 label that would require product sellers to include a hazard symbol on the label as well as a link to the OEHHA website, list at least one chemical contained in the product, provide the warning in foreign languages in some cases, and put the label on products sold online to consumers in California. The public can submit comments on these proposed changes until 5pm April 11.
While Prop. 65 only applies to sales to California consumers, its reach extends beyond the golden state. Most businesses that sell in California also sell goods and services across the US, if not globally. The growth in online sales makes it increasingly challenging for businesses to separate products headed to California — and requiring a Prop. 65 warning — from those being sold in other states. And, says California attorney Roger Cerda, the likelihood of products being resold in California, which is the largest state economy in the US and the eighth largest economy in the world, by a third-party retailer or distributor are high. This increases the potential risk of enforcement lawsuits.
“What this ultimately means is that many companies that do business in California (or have the remote possibility of having products sold into California) elect to place Prop. 65 warnings on all of the products, regardless of what state they are sold in,” Cerda, partner and co-leader of Alston & Bird’s Proposition 65 Group, told Environmental Leader.
The Prop. 65 website regulations takes effect April 1, but it’s unclear when it will come online.
Sam Delson, deputy director for external and legislative affairs at OEHHA, earlier this week told Chemical Watch that a specific date for the site’s launch has not yet been set. “However, we expect it will be soon,” he said.
One thing that is certain: it’s a significant change to the earlier chemical warning requirements, which only required businesses to provide consumers with a general warning about Prop. 65 listed chemical in products.
Cerda says the new rules could be time consuming for some companies because it authorizes OEHHA to request businesses that issue Prop. 65 warnings to provide additional product and service information including:
- the name of the listed chemical for which the warning is being provided;
- the location of the chemical in the product;
- the concentration of the chemical in the product;
- the anticipated routes of exposure to the listed chemical in the product; and
- the estimated level of exposure to the chemical.
If OEHHA requests additional information under the new rule, the business has 90 days to respond.
“Responding to OEHHA requests for information may be time-consuming for some business — especially those that issue Prop. 65 warnings on a significant number of products sold,” Cerda says. “However, it is important to note that the new regulation does not require businesses to perform any new or additional testing or analysis for the purpose of responding to a request made by OEHHA. The regulation also offers protection from public disclosure of information that is considered a trade secret or is otherwise exempt from disclosure under the attorney-client privilege.”
To prepare for the soon-to-be-launched website, and potentially revamped warning labels, businesses should start identifying their products and services with Prop. 65 labels, as well as the chemical or chemicals contained therein. “That way, should your business receive a notice from OEHHA, you will be in a much better position to respond,” Cerda says.
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