The California Chamber of Commerce has provided comments on behalf of a coalition of approximately 140 businesses in response to the California Office of Environmental Health Hazard Assessment’s (OEHHA) recent informal discussion draft. The Chamber had offered a lengthy to the previous draft, causing OEHHA to make several major changes to the proposal before circulating the document to stakeholders in late September.
The Chamber said its nine pages of comments, submitted by Chamber President Anthony Sampson, were not exhaustive as a result of a short two week comment period, but meant to represent the major concerns of coalition members.
“Many of the issues OEHHA has identified for potential regulatory action, if addressed appropriately, can help to achieve two of the Governor’s proposed reforms, announced in May 2013. Specifically, while OEHHA’s current regulatory undertaking related to the warning requirements appear to be aimed at achieving the Governor’s calls for ‘improving how the public is warned about dangerous chemicals,’ (whether OEHHA’s proposal achieves this goal is still an issue of debate), many of the proposed regulatory actions can help to reduce frivolous ‘shake-down’ lawsuits and strengthen the scientific basis for warning levels,” Sampson wrote.
The Return of The Safe Harbor Concept Does Not Go Far Enough
In its comments, the Chamber welcomed OEHHA’s reintroduction of Proposition 65’s “safe harbor” warning concept but observed the draft did not go far enough in resurrecting the current safe harbor language. “As written, however, the revised proposal, unlike the current regulations, would not provide guidance to businesses and courts as to the criteria for determining whether a warning that differs from a prescribed safe harbor warning” is clear and reasonable under the regulation the Chamber observed.
The Requirement to Name Specific Chemicals will Cause More Litigation and Confusion Among Consumers
The Chamber expressed “serious concerns” about the agency’s approach to the proposed requirement that would require that twelve specific chemicals be named in Proposition 65 warnings. The so called dirty dozen includes: acrylamide, arsenic, benzene, cadmium, chlorinated tris, 1-4, dioxane, formaldehyde, lead, mercury, phthalates, tobacco smoke, and toluene.
The organization said that having to provide warnings for up to 12 chemicals could become unmanageable for businesses and might “turn off” or “saturate” consumers. The Chamber called for OEHHA to revise the language to make its proposed warnings more succinct.
The Chamber also suggested that there should be an exemption to the warning requirement for levels of these chemicals that OEHHA or courts have determined do not warrant Proposition 65 warnings.
The Chamber also noted there is a disincentive for businesses to undertake exposure assessments in the current enforcement climate “there simply is no benefit for an entity to invest the resources to evaluate whether an exposure is below a level requiring a warning if the only response from a plaintiff is the threat to litigate the issue anyway. For that reason, the requirement should establish that the business need not include in a warning a chemical identified in subsection (a) if: exposure to the chemical has been evaluated by a qualified toxicologist; the toxicologist has concluded that the exposure is below the warning level established for that chemical; and the toxicologist’s evaluation and conclusion are summarized in a written report that is in the possession of the entity causing the exposure.”
Grandfathering Provisions Need Clarification
The Chamber commented that it recognizes that “in general, the safe harbor structure of the draft regulations means that there is no need to grandfather in any prior consent judgments since the warnings they prescribe are approved by the court as “clear and reasonable” and can continue to be used by defendants despite the change in the safe harbor warnings set out in the regulations.”
However, the Chamber suggested that OEHHA make its intent clear the general criteria for clear and reasonable warnings stated in the current regulations at Section 25601(a) need to be maintained and (3) the language needs to recognize that courts can approve warnings outside the context of a settlement (i.e., in a judgment).
The Chamber also suggested that since many of the warnings currently in place may not comply with the final Warning Regulation once it takes effect, OEHHA should provide a transitional period of two years allowing the companies affected by the change time to revise or obtain signs or labels that comply with the new requirements.
Cure for Retailers
The Chamber supports the concept of allowing retailers to cure violations and believes it is completely consistent with the Act’s language regarding retailers. However, the organization is concerned about the 48-hour period contemplated by OEHHA. “The 48-hour time period is far too short for a retailer of any scale or with multiple locations and multiple products within a product category to take sufficient action to investigate the merit of the allegations contained in a 60-day notice and to avoid being sued,” the Chamber asserted. The organization also believes that the language determining when a potential exposure occurs should be more precise.
Register Receipts Preferred Over Boxed-In Warnings
The Chamber expressed its support for retaining cash register receipts as a method of providing warnings for consumer products. It acknowledged that the circumstances when retailers rather than manufacturers provide Proposition 65 warnings are limited, however in those situations a cash register receipt offers a very reasonable method of providing the required warnings. Noting that the sophistication of technology today allows product ingredient data to be included with inventory data and tied in with electronic cash registers.
But the Chamber said in its comments that boxed-in warnings could cause consumers to think that other protective or precautionary warnings being given which are not required to be boxed-in are less significant or concern less significant risks than that for which the Proposition 65 warning is being given.
The trade group also observed a boxing-in requirement for Proposition 65 warnings may undermine or conflict with the purposes of other federally mandated warnings or disclosures even where the federal government has not expressly prohibited a boxed-in warning from being used on an on-product label.
Pamphlets and Other Systems of Warning
The Chamber also encouraged the use of pamphlets and other methods of warnings, noting OEHHA has stated in the past these warning methods are appropriate for certain warnings.
The trade group did not mention the omission of warnings conveyed in product manuals in its most recent discussion draft. However automobile manufacturers have recently taken up this issue with OEHHA. More about product manuals in our next issue.
CalChamber Response to OEHHA’s Sept. 23 Discussion Draft
“The 48-hour time period is far too short for a retailer of any scale or with multiple locations and multiple products within a product category to take sufficient action to investigate the merit of the allegations contained in a 60-day notice and to avoid being sued.”
Anthony Sampson, President
California Chamber of Commerce