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Compliance is Key – Prop 65 New Warning Regulations Create Challenges for All Companies Conducting Business in California
Litigation Section
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Prop 65 is a consumer right-to-know statute designed to inform consumers in California regarding possible chemical exposure in products they may choose to buy. Under new regulations, Prop 65 safe harbor warnings state that a particular product “can expose” consumers to one or more chemicals known by the State of California to cause cancer, birth defects, or reproductive toxicity. The California Office of Environmental Health Hazard Assessment (OEHHA), the regulatory agency in charge of publishing and updating the list of chemicals, is also in charge of proposing and adopting regulations related to the Prop 65 statutory scheme found at California Health & Safety Code section 25249.5 et seq.
The new amendments to the Prop 65 warning regulations adopted by OEHHA have led to a multitude of questions and issues with respect to compliance measures and allocation of responsibility along the chain-of-commerce for products that are sold, shipped or distributed into California. The new regulations, which amend the rules for providing clear and reasonable warnings, also establish a shift in liability for providing warnings which has resulted in a rash of correspondence both upstream and downstream to ensure other companies in the stream-of-commerce either are in compliance or will indemnify and defend another company if they are not. The flurry of industry distribution certifications has led to OEHHA proposing additional revisions to the regulations just focused on Prop 65 Safe Harbor warning responsibility in the chain of commerce. The new regulatory changes also dovetail with certain recent Court rulings that give rise to possible preemption or First Amendment challenges to the Prop 65 warning requirements.
The discussion will focus on key issues raised by the new regulations as well as how they may be impacted by recent Court rulings, and ongoing litigation.
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