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California Revamps Hazardous Chemical Warnings, Allows Two-Year Transition

Friday, September 16, 2016
Sandler, Travis & Rosenberg Trade Report

California’s Office of Environmental Health Hazard Assessment has adopted substantial changes to its regulations on the warnings required for hundreds of chemicals under the Safe Drinking Water and Toxic Enforcement Act of 1986, known as Proposition 65. These changes will be effective as of Aug. 30, 2018, and businesses may continue to comply with either the old or new regulations until then.

Prop 65 requires businesses with ten or more employees to provide a “clear and reasonable” warning to individuals before knowingly and intentionally exposing them to a chemical listed as known to cause cancer or reproductive toxicity (about 900 chemicals are currently listed) unless they can show that the anticipated exposure level will not pose a significant risk of cancer or is significantly below levels observed to cause birth defects or other reproductive harm. OEHHA has now repealed the previous regulations implementing Prop 65 and adopted new ones in an effort to better ensure that the public, including a growing percentage that speaks limited or no English, receives useful information about potential exposures.

The new regulations update the safe harbor, non-mandatory guidance on general message content and warning methods that OEHHA has deemed clear and reasonable. This updated guidance is designed to ensure that warnings provide more detailed information, including a clear statement that a person “can be exposed” to a listed chemical, the names of one or more listed chemicals that are the subject of the warning, a link to a website maintained by OEHHA containing supplemental information, and information about the source of the exposure for environmental warnings. Compliance with this guidance will help businesses avoid litigation, OEHHA states, but alternate warnings that are clear and reasonable under Prop 65 may still be used, though they will not have the benefit of a safe harbor defense to an enforcement action.

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