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Polsinelli Environmental and Natural Resources


March 2015


New Proposed Requirements for Prop 65 Warnings Create Potentially Significant Implications for Businesses Across the Country







For more information on this alert, please contact:


Ryan S. Landis



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Anne Cherry Barnett



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John H. Shimada



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Additional Environmental Leaders:


Christopher E. Erker

Practice Area Chair


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Jane E. Fedder

Practice Area Vice Chair


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The California Office of Environmental Health Hazard Assessment (OEHHA) recently sent out a notice regarding proposed rulemaking to repeal the existing regulations that govern the provision of clear and reasonable warnings under the California Safe Drinking Water and Toxic Enforcement Act of 1986 ("Prop 65") and to adopt new regulations on clear and reasonable warnings. Any company with more than 10 employees that does business in California (regardless of where the company is headquartered) involving products or premises with reproductive toxicants or carcinogens above exempt levels will be required to comply.

Prop 65 is an environmental right-to-know law intended to alert the public, and product consumers, about the presence of hazardous chemicals and toxic substances in foods, supplements, consumer goods, and other products and places. OEHHA is the lead agency for Prop 65 implementation.

The proposed rulemaking can be found here. Written comments regarding the proposed rulemaking will be accepted until 5:00 p.m. PST on April 8, 2015, with public hearings scheduled for March 25, 2015 in Sacramento, California. Companies doing business in California should consider whether to submit comments or attend the hearing directly or indirectly through trade associations.

What Will Change?

The proposed new regulations make dramatic changes to the Prop 65 warning regulatory regime. Proposed changes include:

  1. A mandatory combination of new warning language and a symbol system that must be used to comply with the Prop 65 warning requirement;
  2. A list of 12 chemicals or groups of chemicals (acrylamide, arsenic, benzene, cadmium, carbon monoxide, chlorinated tris, formaldehyde, hexavalent chromium, lead, mercury, methylene chloride, and phthalates) that must be specifically identified by name in any Prop 65 warning, where applicable;
  3. No grandfathering of any warnings previously approved in settlements or court judgments or otherwise;
  4. Identification of additional specific warning requirements for: food (including dietary supplements), prescription drugs, alcoholic beverages, restaurants, furniture, diesel engines, passenger vehicles, parking garages, amusement parks, petroleum products, service stations, and designated smoking areas; and
  5. Provisions for retailer responsibilities, occupational warnings, and environmental warnings.

New Changes Invoke Tracking Database for Companies That Must Comply

OEHHA also sent out a notice of a separate, but related, rulemaking regarding plans to develop a website "to collect and provide information to the public concerning exposures to listed chemicals for which warnings are being provided" under Prop 65. OEHHA initially proposed the website as a separate rulemaking in response to early stakeholder comments and concerns. Among other things, importers of any product must provide the following information to OEHHA upon request when reasonably available:

  1. Name and contact information for the manufacturer;
  2. Name(s) of the listed chemical(s) for which a warning is being provided;
  3. Location of the chemical(s) in the product or area (for environmental exposures);
  4. Concentration of the chemical(s) in the final product (or in each component part thereof);
  5. The matrix in which the chemical is found and the concentration of the chemical in the matrix;
  6. Anticipated routes of exposure to the chemical(s); and
  7. Estimated level of exposure to the chemical(s).

Assistance with Compliance and Education

Polsinelli attorneys have extensive experience with Prop 65 regulatory compliance consulting and litigation defense. Our Public Policy and Government Compliance professionals are also involved in the rulemaking process at all levels of government and are ready to assist in lobbying and commenting efforts. If you have any questions regarding whether your company is in compliance or what steps it should take to ensure current or future compliance and minimize any risks, or for additional questions regarding the Prop 65 regulatory framework, please contact the authors or your Polsinelli attorney.












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* Law360, March 2014
** The American Lawyer 2013 and 2014 reports







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