The American Herbal Products Association (AHPA), Silver Spring, MD, expressed concerns that a Pre-Regulatory Proposal issued by the California Office of Environmental Health Hazard Assessment (OEHHA) to address warnings required under Proposition 65 would harm businesses without benefiting consumers.

In 27 pages of comments and recommended revisions submitted to OEHHA, AHPA asserted that the Pre-Regulatory Proposal will increase consumer alarm and confusion about Proposition 65 warnings, create more uncertainty for businesses and increase frivolous lawsuits.

OEHHA’s Pre-Regulatory Proposal was issued by on March 7, 2014 and recommended numerous changes to the state’s regulations for providing “clear and reasonable warnings” related to exposures to substances “known to the State of California” to cause cancer of reproductive harm. The agency identified its goals to include “improving the quality of the warnings being given and providing certainty for businesses subject to the Act.”

“Adoption of the OEHHA Pre-Regulatory Proposal or any amendment to current warning regulations that is at all similar to this proposal would be contrary to the purposes of the Proposition 65,” said AHPA President Michael McGuffin. “The proposal as issued would not meet the goals OEHHA described but would instead have the opposite effect.”

Innovative Recommendations
In addition to expressing concern about the proposal, AHPA provided innovative recommendations to revise the proposal in order to meet OEHHA’s stated goals.

AHPA submitted several recommendations to ensure that Proposition 65 warning language for foods and personal care items is informative and as emotionally neutral as possible, rather than inflammatory and alarming. These recommendations include:

Replacing the term “chemical” in warnings with the word “substance” because the word chemical in and of itself is alarming to consumers.

Allowing warnings for exposures to Proposition 65-listed reproductive toxicants to be more informative by instructing specific populations who could be negatively affected that they shouldn’t use the product, as an option to the current requirement to declare the presence of a chemical that is “known to the State of California to cause birth defects or other reproductive harm.”

AHPA’s comments also outlined how Proposition 65 negatively impacts small businesses despite exemptions for businesses with less than 10 employees. To prevent the negative impact on small businesses, AHPA recommended:

Including a provision stating, “No Proposition 65 warning is required, nor may any Proposition 65 warning be required in the resolution of litigation for, any consumer product manufactured, produced, or packaged by a business employing fewer than 10 employees; nor may any other party be found liable under Proposition 65 for selling such a consumer product.”

California Chamber of Commerce Coalition
AHPA also endorsed comments submitted to OEHHA by the California Chamber of Commerce on behalf of a broad Coalition of organizations concerned about the impact of OEHHA’s Pre-Regulatory Proposal.

“AHPA greatly appreciates the leadership of the California Chamber of Commerce in organizing this Coalition and in developing its in-depth comments, which are also critical of OEHHA’s proposal,” added Mr. McGuffin