Proposed Prop 65 Changes Aim to Make Warning Rules a Bit Clearer
When provisions to the Safe Drinking Water and Toxic Enforcement Act of 1986—also known as Prop 65—went into full effect August 30, it was likely easy for many individuals to predict that the California legislation would not win unanimous esteem. Barely three months into its implementation, folks who engaged in such foresight could engage in a little I-told-you-so display, as the state’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed three big amendments to the measure that aims to make the public aware that certain areas, businesses or products could expose people to chemicals that officials know to cause cancer or reproductive harm.
Prop 65 had long been on the minds of numerous entities, including Promo Marketing, before its summer adoption, especially since arguments concerning what should bear labels or warnings seemed very subjective exercises. While proponents and foes, therefore, had ample time to ponder the merits and faults of Prop 65, an honest look at its scope, one could argue, could not have really occurred until retailers, manufacturers and distributors had seen the changes’ effects on their livelihood. Here we are, then, with OEHHA seeking to remove the ambiguity that it feels exists within what Prop 65 says about the chain of responsibility among the aforementioned parties.
Our #Prop65 warnings website at https://t.co/dSED2jncXS includes more than 50 fact sheets on #Prop65 chemicals and places that may expose you to them, such as restaurants, enclosed parking facilities, and service stations. pic.twitter.com/33epNf8yA3
— OEHHA (@OEHHA) November 20, 2018
Through the end of the year, the Golden State-based body is accepting comments on its trio of proposals. In constructing them, OEHHA has pointed to the need for more clarity regarding such terms as “authorized agent, “retail seller,” “chain of commerce” and “actual knowledge.” The final member of that quartet has drawn the most attention from us, since Prop 65 addresses the potency of close to 1,000 chemicals. Here's the biggest amendment, via legal news and analysis site JD Supra:
First, OEHHA proposes to allow distributors to satisfy their obligation by providing written notice and warning materials either to the retailer or to the business to which they directly sell or transfer the product (i.e., the next distributor in the supply chain). The current rule only provides that such notice be sent to “the authorized agent for the retail seller.” The proposal responds to business concerns that “the original manufacturer, distributor, importer, or others in the chain of commerce may not know where or by whom the product will ultimately be sold to a consumer.”
The other main component is retailer responsibility. According to JD Supra, present regulations require that retailers provide a warning when they possess “actual knowledge of a potential consumer product exposure and there is no manufacturer, producer, packager, importer, supplier, or distributor of the product who is subject to the act, and who has a designated agent for service of process or a place of business in California.” OEHHA would have Prop 65 expand the definition of “actual knowledge” to say that said concept must be of “sufficient specificity for the retail seller to readily identify the product that requires a warning.” Also in the name of consumers’ rights, the office would limit the scope of employees whose knowledge may be attributed to the business to either “an authorized agent for the organization, or an employee in a position of sufficient responsibility that his or her knowledge can be imputed or attributed to the retail seller.”
In this very complicated case of both who-knows-what and who-should-say-what, end-users easily stand to be the most affected components of the debate. Once OEHHA has completed its accumulation of comments, it will be quite interesting, then, to see what, if anything, happens to Prop 65. The mandate has already seen a ton of debate on its effectiveness over the last 32 years, so one wonders if OEHHA’s proposals, if enacted, could come to signal even more analysis of its handling of businesses’ responsibilities and consumers’ rights.