The California Safe
Drinking Water & Toxic Enforcement Act of 1986, as Prop 65 is more formally
known, requires businesses to give people “clear and reasonable warning” before
they expose them to any chemical known to the state to cause cancer or
reproductive toxicity.
About 850 chemicals,
including ingredients in pesticides, household products, foods, drugs, dyes,
and solvents, are subject to the law.
The overwarning
problem arose because manufacturers often slap Prop 65 warning labels on their
products as a way to avoid lawsuits.
Indeed, some plaintiffs’
lawyers troll for products or places in California that lack Prop 65 warning
labels and then file suit for alleged noncompliance.
In other words,
manufacturers and business owners are getting sued and the plaintiffs’ lawyers
are getting rich, Gorsen says. Given this situation, nearly everyone agrees
that Prop 65 is in need of an overhaul to reduce lawsuits and overwarning. But
there is little agreement on how, exactly, to fix the law.
The chemical
industry, environmental groups, and state officials all have varying, sometimes
contradictory ideas about what to do. California’s Office of Environmental
Health Hazard Assessment (OEHHA) earlier this year released a proposal for
sweeping changes to Prop 65 warning labels.
The agency says it
is on track to finalize the modifications by the end of 2015. The proposed
changes, the agency says, would reduce litigation and consumer confusion.
Chemical
manufacturers and some consumer advocates say just the opposite would happen.
They and many other groups are urging the agency to withdraw the proposed rule
or make significant revisions.
The
California agency that implements Proposition 65 – perhaps the nation’s
highest-profile consumer product toxics law – has proposed far-reaching changes
to the now-familiar warnings required under that statute.
California
EPA’s Office of Environmental Health Hazard Assessment (OEHHA) would radically
revamp Proposition 65 (The Safe Drinking Water and Toxic Enforcement Act of
1986) to require warnings that specifically identify key toxic chemicals,
hyperlink to OEHHA information and use more forceful language that differs for
food versus other consumer products.
All
food and consumer product businesses doing business in California are well
advised to track the progress of these proposals and plan carefully for their
implementation.
Proposition
65 requires businesses to provide warnings when their products “expose”
Californians to a long list of chemicals the state has determined cause cancer
or reproductive harm. These warnings have become a ubiquitous sight in
California (e.g., “WARNING: This product contains a chemical known to the
State of California to cause cancer and reproductive harm”). If
adopted, OEHHA’s regulatory changes would dramatically alter these warnings for
the first time in decades.
With
US$785,000 in additional funding directed by the governor’s office, OEHHA has
proposed to require warnings to:
1.
Specifically disclose 12 common Proposition 65-listed chemicals that require
warnings, such as lead and mercury, in the text of the warning
2.
Provide a link to a new OEHHA website to allow the public to access more
information relating to each product warning, including additional chemicals,
routes of exposure and, if applicable, any actions that individuals could take
to reduce or avoid the exposure and
3.
Differentiate consumer products and foods
12
KEY CHEMICALS TO BE IDENTIFIED IN WARNINGS
Long
requested by consumer advocate organizations, OEHHA’s proposed regulations
would require warnings to specifically identify exposures to at least 12
key chemicals (or combinations) “commonly found in consumer products, including
foods”:
acrylamide arsenic
benzene
cadmium
chlorinated tris
1,4-dioxane
formaldehyde
lead
mercury
phthalates
tobacco smoke and
toluene
The
process OEHHA used to develop this initial list is not clear. But OEHHA
states the list is not static or exhaustive and is likely to grow.
As
the final proposed regulations were developed, consumer product businesses
contested specifying these 12 chemicals on warnings for two reasons. First,
businesses fear consumers would not understand the relative risks, uses or
properties of these listed chemicals, making informed consumer responses
difficult. For instance, while consumers might understand and respond
easily to warnings regarding lead or tobacco smoke, warnings about chlorinated
tris or 1,4-dioxane might draw less-informed responses. Second,
warnings will become lengthier and potentially quite cumbersome, particularly
if a product contains three or four listed chemicals. OEHHA, however,
discounts this risk and does not anticipate that warnings will contain more
than one or two chemicals on the list.
OEHHA
WEBSITE AND OBLIGATIONS
OEHHA
plans to launch a revamped website to provide the public with a greater volume
of consumer-friendly Proposition 65 information.
The
proposed regulations would require a business implementing a Proposition 65
warning to inform OEHHA within 30 days of:
The name and contact information for the person providing the warning and the manufacturer of any product the warning is intended to cover
The specific products or category the warning covers, including barcodes, if any
The type of occupational exposure the warning is intended to cover, if any
The type of environmental exposures the warning is intended to cover, if any, and the affected area
The chemical or chemicals for which the warning is being provided
Whether the warning is for cancer, or reproductive harm, or both
The anticipated pathways of exposure for which the warning is being provided
Reasonably available information concerning the anticipated level of human exposure to the listed chemical, if known
Information concerning actions a person can take to minimize or eliminate exposure to the listed chemical, if any and
Whether the warning is being provided in any language other than English and a copy of the translated warning, if any.
The
revamped OEHHA website would be populated using this new information.
Moreover, these major new information reporting burdens would rest entirely
on individual businesses. While businesses could coordinate some reporting
information through trade groups or other organizations, the OEHHA website
reporting requirements would create major new expenses for consumer product
businesses selling in California.
MORE
FORCEFUL WARNING LANGUAGE, AND DIFFERENCES FOR FOOD AND CONSUMER PRODUCTS
OEHHA’s
proposed regulations significantly change the now-familiar warning message: “WARNING:
This product contains a chemical known to the State of California to cause
cancer and reproductive harm.” The phrase “will expose you to”
would replace the word “contains.” OEHHA concludes the word
“contains” does not sufficiently clarify that individuals will actually be
exposed to a chemical if they use a given product. Businesses have
objected to the new phrase, believing it will cause unnecessary distress and
inaccurately imply that an “exposure” will occur in every use of the given
product.
For
consumer goods, the proposed
regulations would require the international health hazard symbol in
warnings:
OEHHA
asserts this symbol will make warnings more effective.
Food
products would not need this
or any other symbol because, OEHHA reasons, food product labeling does not
generally include pictograms. Instead, OEHHA would require food warning
labels messages to add the word “consuming,” resulting in the phrase: “consuming
this product will expose you to…”
For
both consumer product and food warnings, OEHHA regulations would clarify:
- Responsibility for compliance rests with the manufacturer, producer, distributor, or packager of the consumer product or food
- Warnings must use one or more of the following methods, singly or in combination:
- Warning on product’s label
- For Internet purchases, warning before the consumer completes purchase
- For catalog purchases, warning in a manner that associates the warning with the item being purchased
- For store purchases, a shelf sign
- Product-specific warning via electronic means that does not require the consumer to seek out the warning and
- Listing any of the 12 specified chemicals that are applicable.
SOME FLEXIBILITY FOR INDUSTRY
While onerous and expensive, the
proposed regulations would provide some minimal flexibility and an
opportunity to prepare for compliance. OEHHA would provide the
opportunity to propose product-specific, area-specific or chemical-specific
warnings that deviate from the regulatory standard, subject to OEHHA
approval. In theory, this flexibility would allow tailored warnings where
the regulatory provisions are lacking. The new regulations also would provide
a grace period, recognizing court-approved settlements with warning content
before January 1, 2015.