California’s Office of Environmental Health Hazard Assessment’s (OEHHA) revised regulation to modify the “clear and reasonable warning” provisions under Proposition 65 appear to have raised more concerns than it has addressed according to public comments submitted after the agency announced it would revise the proposal in late November.
The new proposal raises concerns with industry groups and advocacy groups alike. Industry coalition members say the proposal suffers from “ambiguous drafting,” arguing that a requirement to identify at least one listed chemical in a product may be construed as requiring manufacturers to disclose the presence of all listed chemicals in their products.
Several advocacy groups that have also formed a coalition are calling for more informative warnings and seeking to prevent companies from providing supplemental language to their warnings.
The coalition of advocacy groups put it this way:
“In general, we find these changes to be an improvement on both existing regulations and the regulations proposed in early 2015. We also believe that the proposed regulations still contain serious flaws that OEHHA must address to avoid weakening Proposition 65’s protections. This coalition pointed out many of these flaws in our comments to the previous draft.”
OEHHA abandoned its original warning regulation proposal and released its revised proposal in late November, when it was clear that the agency would not be able to finalize the original proposal introduced in January 2015 in the one-year period mandated by California’s Administrative Procedures Act.
According to the agency, the new proposal takes into account” the 61 public comments submitted previously by stakeholders last year. But the most recent comments voice frustration about the vagueness of the new proposal and the sense that the entire process is back at square one.
The California Chamber of Commerce identified many areas where the drafting of the proposed regulation is unclear. The first concern expressed by the trade group is the provision that would require businesses to identify at least one chemical for which the warning is being provided is included in the text of the warning, to the extent that an exposure to that chemical or chemicals is at a level that requires a warning.
“The Proposal’s ambiguity will make it extraordinarily difficult for businesses to assure themselves that they will be in compliance and will result in an increase of unnecessary and frivolous “bad warning” lawsuits similar to those that likely would have arisen from the 12 chemical (dirty dozen) requirement” that was considered in the previous draft. Additionally, as drafted, we are concerned that the revised chemical specification requirement may impose an unlawful burden on businesses and contradict the Act and the intent of the voters in adopting Proposition 65.
The Chamber discussed each of these issues raised in the proposal and offered recommendations to resolve them.
The requirement to select one chemical out of multiple chemicals for which the warning is provided can be problematic in several different ways the trade group notes.
“Under the current language, if a business provided a warning for Prop 65 listed chemicals A and B, it is unclear whether the business can elect to identify chemical A in the warning even if chemical B is somewhat more predominant in the product or facility (which does not necessarily mean it is more predominant in the exposure or poses the greatest effect). This issue will undoubtedly serve as a basis for litigation absent a clear and unequivocal statement that the business has discretion as to which relevant listed chemical it chooses to identify in its warning,” the Chamber wrote.
The Chamber recognizes that “given that it is often the central issue raised in enforcement litigation, the requirement that warnings specify a chemical “to the extent that an exposure to that chemical or chemicals is at a level that requires a warning” is unworkable. It also imposes an unlawful burden on the defendant that contradicts the Act and the voters’ intent,” the organization wrote.
“In enforcement actions, the burden of showing that an exposure meets this criterion is on the defendant. In other words, under Proposition 65, the defendant’s only statutory burden is to demonstrate that no warning is required. Yet, proposed Section 25601 subdivision (c) would inappropriately, unnecessarily, and unlawfully require businesses to demonstrate that a warning is indeed required.”
The Chamber calls for the complete removal of this provision.
The proposal for specifying the name of a chemical also risks confusion when an exposure involves both listed carcinogens and reproductive toxicants. For example, if an exposure involves both Chemical A (a carcinogen) and Chemical B (a reproductive toxicant) and the business elects to identify only Chemical A in the warning, the warning could falsely suggest to the consumer that Chemical A also causes birth defects or other reproductive harm when it does not (or, alternatively, that the exposure for which the warning is being given involves carcinogens like Chemical A only).
The Coalition proposes that OEHHA simplify its safe harbor language throughout its proposal into the following single formulation that has previously been embodied in several consent judgments reviewed by the Attorney General’s office and approved by state courts and which will be subject to whatever further information OEHHA elects to post on its website to assist the consumer:
“This product can expose you to chemicals, including [name of one or more chemicals], known to the State of California to cause cancer and/or birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov/product.”
The coalition is also suggesting that OEHHA maintain the established Safe Harbor Language because the new proposal does not explain what it means for a warning to be “clear and reasonable.” The members are concerned that a lack of guidance in this area may prevent them from developing alternative warning language to the standard Safe Harbor Warning under the statute, and have called for the agency to incorporate the established Safe Harbor language into the revised regulatory proposal.
The coalition of advocacy groups (NGO Coalition) includes many Prop. 65 citizen enforcement groups including: As You Sow, The Center for Environmental Health, Environmental Law Foundation, The Environmental Working Group, Mateel Environmental Justice Foundation, CHANGE, Clean Water Action, Coalition for Clean Air, Pesticide Action Network North America, Women’s Voices from the Earth, California Healthy Nail Salon Collaborative and the Breast Cancer Fund.
These organizations support the proposed requirement to identify by name at least one chemical for which a Proposition 65 warning is provided. The NGO coalition believes that the new warning regime will “will make the warnings more informative, and help consumers and other exposed people reduce their aggregate exposure to a particular chemical.”
The advocacy groups support use of the “exclamation mark/triangle” symbol to identify safe harbor warning statements. The use of the symbol was found to help consumers locate and understand the warning according to a recent survey conducted by U.C. Davis.
The NGO Coalition also strongly supports the proposed requirement for manufacturers to provide Safe Harbor Warnings in additional languages “as the number of Californians increases who are multilingual or not native
English speakers, this concept becomes more and more important,” the NGO Coalition wrote.
The advocacy groups also support proposed restrictions on the amount of supplemental text in Safe Harbor warnings which often have the effect of diluting or minimizing the warning language they say.
The NGO Coalition members expressed concerns about ensuring that Safe Harbor Warnings are transmitted before purchase.
“Safe harbor warnings on receipts, or on products that are purchased online are difficult for consumers. Receiving a warning at those points requires the consumer to go through a return process to avoid exposure, which is time-consuming and expensive for businesses and consumers alike,” the NGO Coalition wrote.
The advocacy groups also argue that product manuals are not an appropriate location for safe harbor warnings.
“Most manuals are not available to consumers until after purchase, so the warnings would present the same issues as warnings on receipts. In addition, many consumers do not read manuals, especially the sections that contain multiple warnings,” the advocacy groups assert.
A revised proposal, and additional opportunity for public comment, are expected later this year, according to the California Chamber of Commerce.