California’s Office of Environmental Health Hazard Assessment (OEHHA) withdrew its controversial warning regulation as it became apparent that it could not reach the consensus necessary to finish its rulemaking within the one year period allotted by the state’s Administrative Procedures Act.
The agency announced that it withdrew its January 2015 proposed warning regulation and replaced it with an alternate proposal over the Thanksgiving holiday weekend.
The agency explained it is withdrawing and re-proposing the regulations because of “extensive revisions it made to the proposed regulatory language based upon a review of stakeholder comments and its review of the results of a survey conducted by the University of California Davis Extension Collaboration Center to assess the effectiveness of the existing and proposed new warnings.”
A lack of consensus and progress probably had nothing to do with it.
Despite some positive changes in the current proposed warning regulation, many controversial and troublesome provisions remain. For instance OEHHA has carried over a proposed requirement to state that a chemical “can expose” a person to Proposition 65 chemicals and substances—a vast improvement from the inflammatory “will expose” language proposed by OEHHA early this year.
Similar to the proposal introduced in January 2015, the warning regulation would allow for a two-year period before the new regulations take effect.
While OEHHA has scrapped the “dirty dozen” requirement that would have required businesses to disclose the identity of 12 common Proposition 65 chemicals and their related chemical compounds in warnings, the revised proposal calls for regulated businesses to disclose one or more of the chemicals for which a warning is being provided.
The Safe Harbor provisions in the new proposal are exactly the same as the January 2015 version. It allows businesses to provide warnings using the content or method of their choosing, so long as the warning is “clear and reasonable.” However, the proposal provides no guidance or definition of what constitutes a “clear and reasonable” warning.
However, since the proposal only calls for manufacturers and retailers to name one of the chemicals subject to the warning, potential liability for failing to name other chemicals that may be present is reduced significantly.
The new proposal includes one gift for businesses by finding a practical solution about how to handle warning provisions in the thousands of existing Proposition 65 settlements that are in effect. It provides for the grandfathering of court approved settlements by explicitly stating that warnings provided pursuant to a court-approved settlement or final judgment are “clear and reasonable.”
This provision does not apply to out-of-court settlements, however.
Another change in the proposal that will help businesses are new provisions that would prevent unnecessary re-labeling of inventory by dropping the sell-through period for products already in the stream of commerce. The previously proposed two-year sell-through period was problematic because any products manufactured prior to adoption would have to be re-labeled if they were still on the shelves two years after adoption. The November draft [§25600(b)] fixed this problem, providing that products manu-factured prior to adoption are protected indefinitely so long as their warnings comply with the prior (September 2008) regulations. Given that many products have shelf lives longer than two years, this change, if adopted, would avoid substantial re-labeling costs.
When it comes to the grace period afforded to retailers, the revised warning regulation proposal does not provide any relief for short grace period of two days to implement consumer warnings in the event that the retailer receives warning inform-ation from the product manufacturer or supplier and does not post the warning(s).
This provision is carried over from the withdrawn proposal.
The new proposal also carries over the Multiple Language Requirement of the withdrawn proposal that requires that If a product label or sign includes languages other than English, the warning must also be in that language.
The requirements for environmental exposures also remain the same as they were in the withdrawn version of the warning proposal, requiring a minimum 72-point font and for businesses to clearly describe the area for which the warning is
being provided, potentially requiring businesses to perform an exposure assessment in some cases, such as a chemical release where the affected area is not completely determined.
A pictogram requirement is included in the new proposal, although gone is the exploding chest pictogram that caused so much excitement in the original proposal. It is now replaced by a graphic of a black exclamation point within a yellow triangle. However, according to the proposal this pictogram can be in black and white.
The newly proposed regulation in its current version would keep many of the definitions already in the existing regulations, but also re-proposes new definitions from the January 2015 proposed rule.
The new warning regulation proposal would redefine the terms, “knowingly”, “retailer”, “label”, “labeling” and “sign” in much the same way it did in the January 2015 proposal.
OEHHA proposes a new term “Authorized Agent,” defined as “the person or entity designated by a retail seller to receive notices from product manufacturers, suppliers, and distributors under this article.”
The Proposed Rule also proposes a mod-ification to the term “Affected Area” by deleting the phrase “is reasonably calculated to occur at.” The modified language would read: “the area in which an exposure to a chemical known to the state to cause cancer or birth defects or other reproductive harm is reasonably calculated to occur at a level that requires a warning.”
The Proposed Rule also modifies the definition for “sign” to clarify that a sign can include shelf signs and must be conspicuous by being “clearly visible under all lighting conditions normally encountered during business hours.”
OEHHA has scheduled a public hearing to be held on January 13, 2016, at which time any person may present statements or arguments orally or in writing relevant to the latest revision of the proposed Warning Regulation. The public hearing will commence at 10:00 a.m. in the Coastal Hearing Room, California Environmental Protection Agency Building, 1001 I Street, 2nd Floor, Sacramento, California and will last until 12:00 noon.
Any written comments concerning this proposed regulatory action, regardless of the form or method of transmission, must be received by OEHHA by 5:00 p.m. on January 22, 2016, the designated close of the written comment period. All comments will be posted on the OEHHA website at the close of the public comment period.
The public is encouraged to submit written information via e-mail, rather than in paper form. Send e-mail comments to P65Public.Comments@oehha.ca.gov. Please include “Clear and Reasonable Warning Regulations” in the subject line. Hard-copy comments may be mailed, faxed, or delivered in person to the appropriate address below.
Office of Environmental Health Hazard Assessment
P. O. Box 4010
Sacramento, California 95812-4010