California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has scheduled an April 14, 2014, public workshop to discuss “a possible regulatory action to change the existing regulation governing Proposition 65 warnings.”

The Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65) requires manufacturers to warn consumers if their products contain any substances known to the state to cause cancer or reproductive toxicity. Failure to provide such warnings exposes manufacturers to enforcement actions filed by private entities or state prosecuting authorities and the possibility of significant fines.

While the draft proposed changes hyperlinked to the meeting announcement could change before OEHHA takes any final action, they were developed on the basis of public input provided in 2013, after the agency conducted a pre-regulatory workshop, and respond to the governor’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.”

As to the proposed warnings changes, OEHHA is considering three to five required elements: (i) use of the word “WARNING,” (ii) use of the word “expose,” (iii) inclusion of the international pictogram for toxic hazards (“only for consumer products other than foods, occupational and environmental warnings”), (iv) disclosure of the names of up to 12 commonly known chemicals that require warnings—such as lead and mercury—in the warning text, and (v) a link to a new agency Website with more information about the warning, “including additional chemicals, routes of exposure, and if applicable, any actions that individuals could take to reduce or avoid exposure.”

The proposal would also include provisions giving small retailers the opportunity “to cure certain minor warning violations within 14 days and avoid any private enforcement whatsoever,” tailoring “language for specific warning contexts (e.g. alcohol, drugs, medical devices, parking garages, hotels, apartments, and theme parks),” and recognizing “warnings covered by existing court approved settlements.” According to an OEHHA timeline, the final changes could be adopted by early summer 2015. Written comments on the draft pre-regulatory warning regulation are requested by May 14. See OEHHA News Release, March 7, 2014.


Issue 517

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.