OEHHA has approved a regulation that will require companies providing Proposition 65 warnings to submit data about their products to a yet to be built Lead Agency website.
California’s Office of Environmental Health Hazard Assessment (OEHHA) today announced it has adopted its regulation to create a Lead Agency website that will convey information to the public about exposure to chemicals on the Proposition 65 list in consumer products and at various sites.
The website proposal was attacked by a coalition of more than 170 businesses and trade groups lead by the California Chamber of Commerce and the American Chemistry Council (ACC).
The Chamber coalition members argue that the agency lacks the statutory authority to require companies to furnish supplemental information to Proposition 65 warnings.
The Regulation, which takes effect on April 1, will require manufacturers, distributors and importers of a product carrying a Proposition 65 warning, to provide within 90 days of the agency’s request:
the name of the listed chemical(s) for which warning is given;
the location of the chemical(s) in products that require warning under Prop 65;
the concentration of the chemical(s) in these final products;
anticipated routes or pathways of exposure to listed chemicals; and
the estimated levels of exposure to the chemical(s).
In response to public comments submitted to the agency, OEHHA added a provision that explains that the rule “does not require a business to perform any new or additional testing or analysis, for the purpose of responding to a request made by the lead agency.”
However, this provision does not take into account the many businesses that post preemptive warnings to vaccinate themselves against Prop. 65 bounty hunter lawsuits. It is likely many of these companies do not expose consumers to listed chemicals exceeding Safe Harbor Levels, but do not have the budget or expertise to conduct a costly risk analysis.
OEHHA also notes that the final regulation has added protections for information designated as trade secrets.
Beyond these two concessions, the agency did not adopt several suggestions submitted by stakeholders that would ease their compliance burden. For example, OEHHA did not put in place provisions to notify manufacturers about data about their products before the data is posted on the public website. Nor did the agency extend the 90 day response period to six months as requested. OEHHA also rejected the concept of a de Minimis reporting threshold.
Industry objections that the agency lacks statutory authority remain, and there is a strong possibility that the adopted regulation may face a legal challenge before OEHHA can launch the proposed website.
In public comments submitted in September, the coalition said that “Proposition 65 does not empower OEHHA to require manufacturers, producers, importers and distributors to provide it with information related to their products … or regarding their decisions to provide Proposition 65 warnings for listed chemicals.”
However, in its final statement of reasons, OEHHA wrote that Prop 65 is a right-to-know law, and that the agency is responsible for implementing rules that “further its purposes.”
The agency contends the information the website would provide is linked to the statutory rights of Californians to be informed about exposures to listed chemicals.
In addition to its objections to the website proposal, ACC suggested in its comments that it had questions about OEHHA’s ability to maintain its website in a manner that provides accurate, meaningful and up-to-date information to consumers,” if and when it is built.
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