OEHHA to Hold Public Workshop on Potential Regulation Addressing Proposition 65 Warnings.

On July 30, 2013, California’s Office of Environmental Health Hazard Assessment (OEHHA) will hold a public pre-regulatory workshop in order to gather input from interested parties on potential rulemaking to modify Proposition 65 warnings. If formally proposed and adopted, the regulation would either supplement or replace existing OEHHA regulations governing Proposition 65 warnings and conform to any statutory changes that may be enacted, such as the legislative reform package currently championed by Governor Brown.

Proposition 65 currently requires businesses to provide a “clear and reasonable” warning before knowingly and intentionally exposing anyone to listed chemicals that are known to cause cancer, birth defects and other reproductive harm. This warning can be given by a variety of means, such as by labeling a consumer product, posting signs at the workplace, distributing notices at a rental housing complex, or publishing notices in a newspaper. However, with more businesses posting blanket warning signs in attempting to comply with Prop. 65, many are concerned that the signs have become meaningless to the public and a source of frivolous litigation. In response to these concerns, Governor Brown announced in May that he was seeking reform of Proposition 65 in order to end frivolous lawsuits and improve warning signs.

According to OEHHA, the potential rulemaking would provide for more informative and meaningful warnings to individuals concerning exposures to carcinogens and reproductive toxicants. The regulation would offer a variety of options for businesses that are required to provide these warnings, and would provide businesses with greater certainty that their warnings comply with Prop. 65.

At this time, OEHHA believes the regulation should include the following:

  • A requirement that a warning inform consumers that they will be exposed to a listed chemical;
  • The minimum information that must be included in all warnings, such as the health effect of exposure, how a person will be exposed, or how to avoid or reduce exposure to a listed chemical
  • Approved warning methods and content regarding exposures to listed chemicals in consumer products and in foods, including those sold at retail establishments and via the Internet;
  • Approved warning methods and content for environmental exposures, including for some common scenarios such as parking lots, hotels, apartments, and other businesses;
  • Requirements and approved methods for providing additional contextual information concerning exposures to listed chemicals. This information would not have to be available to the public before exposure, but must be available on a website or other generally accessible location;
  • Reasonable transition times for businesses to come into compliance with this regulation and recognition of existing warnings that are included in court-approved settlements.

Written comments are due August 30, 2013. The workshop will take place from 10 am to 3:30 pm in the Coastal Hearing Room at the Cal/EPA Headquarters Building, 1001 I Street, Sacramento, CA, and the agenda is now available online [PDF]. The workshop will be webcast at http://calepa.ca.gov/Broadcast. OEHHA notes that if it decides to formally propose a Proposition 65 warning regulation, it will provide additional opportunities for public input.

Prop. 65 Reform on California’s Agenda.

Last month, California Governor Jerry Brown unveiled his proposed reforms to Proposition 65, the 27-year-old law passed by voter initiative to protect Californians from harmful chemicals. Gov. Brown directed the California Environmental Protection Agency (“Cal/EPA”) to work with the legislature to improve the law and put an end to the proliferation of abusive “shakedown” lawsuits. Prop. 65 is best known for requiring clear warnings about chemicals known to the state to cause cancer or reproductive harm, often seen in retail stores and restaurants and on many consumer products. Like several other landmark environmental laws, Prop. 65 permits private citizens acting in the public interest to enforce the law by suing violators. Under the current law, unscrupulous lawyers are incentivized to bring Prop. 65 lawsuits because they may be able to recover all attorneys’ fees plus damages of up to $2,500 per day, or otherwise extract settlements with little proof of a meritorious claim.

The governor’s reform package includes:

  • capping attorney’s fees;
  • requiring plaintiffs to make a stronger showing of a violation before bringing suit, as well as other disclosures;
  • limiting the amount of money from an enforcement action that can go into settlement funds (as opposed to penalties);
  • authorizing the state to adjust the level at which warnings about reproductive harm are required; and
  • making more useful information available to the public on chemical exposure and protection.

The governor’s announcement adds to growing momentum in the legislature to reform Prop. 65. Assemblyman Mike Gatto introduced legislation this session which would allow business owners to avoid a costly lawsuit or settlement by paying a $500 fine and correcting the violation within 14 days after receiving a notice of violation. The bill, AB 227, has passed the state Assembly and this week was approved by the Senate committee on environmental quality; the Senate judiciary committee will consider it on Tuesday, June 25.