The American Chemistry Council (ACC) has submitted comments urging California’s Office of Environmental Health Hazard Assessment (OEHHA) to withdraw proposed changes to its Proposition 65 warning regulations. The trade association claims that new requirements to disclose the identities of a subset of 12 chemicals on the Proposition 65 list in product or facility warnings would “confuse consumers, increase costs and compliance burdens for business, and increase litigation.”
ACC in its comments emphasizes OEHHA has no statutory authority to create a separate regulatory “super list” compelling separate warning requirements. The “cherry-picking” of chemicals to get consumers to pay attention, is arbitrary and not based on any scientific or risk data, or external peer review, ACC wrote.
“The statute does not require that notice be provided of the presence of a specific chemical. It could have been drafted that way, but was not. The regulations cannot create a new obligation that does not exist in the statute itself,” the trade group argues.
“The statute is set up to be binary – either a chemical is listed or it is not. The statute does not offer a framework for ranking chemicals by hazard, exposure, or risk in order to support the strength of a warning,” ACC added.
It was Gov. Jerry Brown who first suggested that Prop. 65 warnings would provide more useful information to consumers if the warnings identified specific chemicals. Gov. Brown made this point a central part of his reform efforts in 2013. After efforts to introduce a reform bill failed, Brown charged OEHHA to promulgate regulations that would provide the clearer warnings he envisioned.
OEHHA selected 12 chemicals that are widely used in consumer products to comprise what has become known as the “dirty dozen.” However the number of chemicals is more than 12 because the chemicals belonging to the phthalate family of plasticizer compounds were included in the listed as one chemical, although several of the chemicals are separately listed under Proposition 65.
ACC’s Concerns about the warning regulation go well beyond the proposed requirement to name the dirty dozen, however. One of the association’s major concerns is a “no dilution” provision that would allow manufacturers from providing supplemental information on their products’ safety, however the provision would regulate the content of the supplemental information by adding the restriction
hat any such supplemental information “may not contradict, dilute, or diminish the warning.”
ACC contends that the statute does not require regulated companies to provide risk information, and OEHHAs’ proposed regulations cannot be made to require them.
“Likewise, it cannot be the case that manufacturers are precluded by Proposition 65 from providing truthful, contextual information about product safety or relative risk. This is not only First Amendment protected commercial speech, it is exactly the kind of useful and informative information that OEHHA seems to want for consumers,” the association wrote.
The organization observed that regulating supplemental information to warnings would likely trigger federal preemption problems in certain circumstances. “For example, a manufacturer may wish to label a product noting that a particular food additive has been approved as safe by the federal Food and Drug Administration, or to add this information to a Prop 65 warning.”
ACC argued “it cannot reasonably be the case that Proposition 65 would be read to circumscribe safe use, safety, product instructions, and product warnings offered by manufacturers. This is useful information to a consumer, and places the Proposition 65 ‘warning’ about the same chemical in context. A truthful statement such as this is both useful from a policy standpoint as well as legally protected.”
The trade group called for OEHHA to remove the current clause about supplemental information to warnings or replace it with language permitting “truthful, accurate supplemental information from the manufacturer or other regulated entity.”
ACC also urged OEHHA to clarify language defining what constitutes a product exposure. The organization said it is “imperative that warnings are made to consumers only with respect to a finished consumer good or article.” While a component or material supplier may have a contractual or indemnification obligation to the manufacturer of the finished consumer good, upstream component or materials suppliers can have no independent liability under Proposition 65. Liability only attaches to persons who actually expose a person to a chemical, ACC concluded.