By Ilana R. Morady and Meagan Newman

On January 15, 2015, California’s Office of Environmental Health Hazard Assessment (OEHHA) published a Notice of Proposed Rulemaking to modify the clear and reasonable warning regulations under Proposition 65.

As most businesses residing in or doing business in California know, Proposition 65 is the law that requires businesses to notify Californians about the presence of certain chemicals in buildings, workplaces, consumer products, and foods. The notification must be “clear and reasonable,” however a business’s obligations under the “clear and reasonable” regulations can be difficult to discern – especially for businesses who are not engaged in retail sales. The proposed modifications seek to elucidate the “clear and reasonable” warning requirement, in large part by setting forth the specific responsibilities of manufacturers and others in the chain of distribution for products that are eventually sold at retail.

The proposed regulation also contains significant changes to the warning language required for “safe harbor.” Under the current regulations, warning language stating that the “product contains a chemical known to the State of California to cause” cancer, birth defects, and/or other reproductive harm is sufficient. However under the proposed regulations, warnings would have to include, among other things, the wording “WARNING” in all capitals and bold print, the language “this product can expose you to a chemical,” and reference to OEHHA’s Proposition 65 website. Additionally, twelve chemicals would have to be specifically identified on a Proposition 65 warning: acrylamide, arsenic, benzene, cadmium, carbon monoxide, chlorinated tris, formaldehyde, hexavalent chromium, lead, mercury, methylene chloride and phthalate(s).

The proposed regulation represents a significant change, and, if finalized, will undoubtedly add to the burden of Proposition 65 compliance. On March 25, 2015, a public hearing will be held on the proposed changes. The comment period for the proposed changes closes on April 8, 2015. If the amendments are finalized, they would not take effect for two years to provide manufacturers, distributors, and retailers a “sell through” period.