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The California Office of Environmental Health Hazard Assessment (“OEHHA”) issued a pre-regulatory proposal for new regulations that would change the requirements for warnings provided under Proposition 65 for exposures to certainchemicals identified by the State to cause cancer or reproductive toxicity. The “informal” pre-regulatory draft, if adopted as proposed, would overhaul the requirements relating to Proposition 65 warnings for manufacturers, retailers, and service-providers doing business in the State. Notably, the proposal would require warnings to specify certain listed chemicals, mandate specific warning language for certain exposure scenarios, and require businesses to submit extensive product and exposure-related information to OEHHA. The comment period on the pre-regulatory draft will be open until May 14, 2014.


During a April 14, 2014 Pre-Regulatory Workshop, OEHHA stated that the aim of the regulatory revision is to provide clarity to businesses regarding their compliance obligations under Proposition 65 and to provide more meaningful warnings to the public. OEHHA acknowledged that the proposal as drafted would impose significant new burdens on businesses. A number of stakeholders expressed concern that the pre-regulatory draft introduces complexities that may become compliance pitfalls and increase the risk of private litigation. OEHHA representatives emphasized that the pre-regulatory proposal is the agency’s first attempt at improving the Proposition 65 warning requirements and that the text of the regulation may change substantially prior to the initiation of formal rulemaking (anticipated in Summer of 2014).


The pre-regulatory proposal was released by OEHHA on March 7, 2014, the week before the California Department of Toxic Substances Control(“DTSC”) announced its initial draft “priority products” under the State’s Safer Consumer Products regulations. Together with DTSC’s new Safer Consumer Products framework, OEHHA’s potential revision of the Proposition 65 warning regulations signals a strong focus by California regulators related to reducing potential consumer exposures from chemicals in products. The full text of the pre-regulatory proposal, and other information about OEHHA’s rulemaking process, is available here.



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