California’s Office of Environmental Health Hazard Assessment (OEHHA) this week posted draft regulatory language to amend Proposition 65 warning label regulations with several AHPA recommendations incorporated. The proposed language would repeal the existing regulations that govern the provision of clear and reasonable warnings under California’s law.
 
OEHHA’s draft language did not include a previous proposal that would have required companies to submit information about the chemicals to OEHHA for posting to a website. AHPA opposed this proposal because it would not have provided useful information to consumers, it would be burdensome for business to comply with, and it may have required companies to disclose proprietary information.
 
The draft also did not include a proposal to use the international health hazard symbol on warning labels. AHPA also opposed this proposal because it would likely cause unwarranted alarm among consumers.
 
The draft regulatory language includes AHPA’s recommendation to include “dietary supplements” under the definition of food. OEHHA’s amended Prop 65 regulatory language also maintains separate definitions for “label” and “labeling” as recommended by AHPA. These recommendations were made to ensure the terminology used in the regulation is exact and does not cause unnecessary confusion.
 
OEHHA did not include AHPA’s recommendation to allow optional warnings for certain products. OEHHA currently requires warnings for reproductive toxins, such as lead, to state that a product contains chemicals “…known to the State of California to cause birth defects or other reproductive harm.” AHPA is leading advocacy efforts to provide another labeling option that would warn against use by specific populations, such as: “WARNING: Not for use by pregnant or nursing women,” or “WARNING: Not for use by children, pregnant or nursing women, or men or women who are trying to conceive.”
 
“AHPA and its members that do business in California appreciate the OEHHA’s efforts to improve Proposition 65 warnings to ensure consumers receive useful information,” said AHPA president Michael McGuffin. “However, the latest draft leaves much room for improvement and AHPA will continue to push for meaningful changes that will benefit consumers and businesses.”
 
The regulatory language issued by OEHHA is still a draft, so AHPA will continue to advocate for additional changes to ensure Prop 65 warnings are useful to consumers. AHPA will also continue to work with a broad coalition of California businesses and organizations being led by the California Chamber of Commerce to enact Prop 65 reform that minimizes frivolous lawsuits. OEHHA has requested comments on the proposed regulation to be submitted by April 8, 2015. 
 
Among other changes, the OEHHA draft regulation would:
•   Mandate new warning language and symbol system
•   Require 12 chemicals or groups of chemicals (acrylamide, arsenic, benzene, cadmium, carbon monoxide, chlorinated tris, formaldehyde, hexavalent chromium, lead, mercury, methylene chloride, phthalates) to specifically identified by name on warnings
•   Not grandfather any warnings previously approved in settlements or court judgments
•   Delineate additional specific warning requirements for food (including dietary supplements), alcoholic beverages, restaurants, prescription drugs, dental care, raw wood, furniture, diesel engines, passenger vehicles, parking garages, amusement parks, petroleum products, service stations, and designated smoking areas
 
In 2013, California Governor Edmund Gerald “Jerry” Brown proposed reforms to Proposition 65 to “require more useful information to the public on what they are being exposed to and how they can protect themselves.” The proposed regulation issued by OEHHA is intended to improve the quality of Prop 65 warnings while providing compliance assistance to businesses subject to the warning requirements.