OEHHA’s New Updates for Proposition 65

Recently California Office of Environmental Health Hazard Assessment (OEHHA) issued notice to repeal the existing regulations that govern the provision of clear and reasonable warnings under California’s Proposition 65 (Safe Drinking Water and Toxic Enforcement Act of 1986, Health & Safety Code Sec. 25249.5 et. seq.) and to adopt new regulations on clear and reasonable warnings. This Act had emerged as a result of California voters’ initiative to address their growing concerns about exposure to toxic chemicals. Since then, OEHHA has been regularly and periodically publishing the list of products on the basis of the quality and the potential degree of harm it may cause.

Proposition 65 enables business entities to save themselves from the claims of injury or product liability by using the safe harbor warning, that is, a warning placed on products or facilities before a notice of violation is received.  Proposition 65 regulations provide that a “clear and reasonable” warning is a defense to a Proposition 65 claim.  In practice it has become a common trend that companies doing business in California seek refuge from the uncertainty by deciding as a preemptive measure to simply place warnings specified in the regulations on all products they sell in California, or to post warnings in all their facilities in California.

The proposed new draft tends to bring a major change in that this safe harbor approach would reverse these mandatory warnings by giving a business the opportunity to use warning methods that are clear and reasonable. These changes by OEHHA to the warning regulations will effectively limit this option for the companies to escape. Most notably the new proposition 65 tends to explicitly deal with the words “knowingly & intentionally” by limiting the scope of placing warnings only after a detailed scientific testing to the degree of exposure to any such product and its likelihood of causing any harm or not to the user. The bill, in its entirety creates an incentive for businesses to use science as a basis for the decision to warn. This bill, if passed, will promote the use of such assessments to guide a company’s decision to warn, and will help reduce the so-called over-warning.