Comment Period - Notice of Modification to Text of Proposed Regulation Title 27, California Code of Regulations Proposed Amendments to Article 6 Clear and Reasonable Warnings – Short Form

To OEHHA, Thank you for giving the public an opportunity to comment on the new recent proposed update to the law. It is my understanding that the intention behind this law is to prevent companies from over warning, which is not in the interest of the public. Based on this, I think it is important to share some of the comments that were discussed by both defendant and plaintiff lawyers at the recent Prop 65 Clearinghouse 2021 and cases going on that is available to the public: 2021 Proposition 65 Clearinghouse Discussion on Over warnings: Eric Sommers (Plaintiff Attorney Center For Environmental Health): "I wanted to move on, the next topic and this was kind of addressed in the initial comments you all made, but I would like to drill down a little bit on it, which is, one of the concerns that I have and that think OEHHA has, is um, which is the use of over warning, with the current short form warning or prophylactic warnings and then I go to things like the Air conditioning unit that was being installed at my house and you know there is no reason that that would cause an exposure...again I see short form warnings much more than I ever saw them before short form warnings were approved on products where I just struggle to see where the exposure is so the question is do the short form warning contribute to prophylactic and overwarning? And if so, what could be done to address that and maybe I will start with you Jeff this time?" Jeffrey Margulies (Defense Attorney): "You know, I think a lot of the problem frankly is that Eric, you may have a very reasonable view of exposure, but many of your colleagues in the plaintiff's bar have a very different view of exposure and businesses generally don't want to litigate exposure and so we have any number of cases where you know as defense lawyers we look at a potential exposure, we do not think there is an issue, but our client got sued or they got a notice about it and so, if you are a business who is looking to avoid getting sued, in some circumstances, you may choose to provide a warning even for an air conditioning unit where there is no plausible route of exposure because the game isn't about plausible routes of exposure, it is about whether you can get past a summary judgement on the issue and you can put up an expert who says there is an exposure and frankly what can be done to address this from my perspective would be providing procedural mechanisms to get out of frivolous lawsuits a lot earlier. I don't think it's got anything to do with the warning, I don't think it has anything to do with the regulations about how you give a warning or what you give a warning for, I think it is the fact that you can't get out of these cases without a trial. And so businesses don't want to go to trial, they don't want to spend a ton of money on all of the defense bar colleagues who are on this zoom or otherwise and don't want to spend a ton of money on experts and they don't want to take a chance that some judge could decide their wrong and hit them with a large penalty and attorneys fees award for the plaintiff. So if you can provide a mechanism that allows us to get rid of those cases that don't have the plausible exposure mechanisms, then like you agree, then I think you'll see a lot of the prophylactic warnings go away." *** Eric Sommers: "I think it is a valid point that you guys have made that the short form warnings do not cause over warning, that over warnings is caused from a aggressive enforcement and companies basically trying to do everything they can to not get sued and not get a notice." Freshmen Orientation: Key Legal Decisions That Shape Prop. 65 Joe Mann(Plaintiff Attorney Center For Environmental Health): "The next factor is that the exposure must be knowing and intentional, there must be knowledge that the exposure occurred...But note that the knowledge analysis can get a little bit tricky. For instance, Rick and I are on opposite sides of a case right now involving Hexavalent Chromium in leather apparel. Many defendants in that case performed certain hex chrome ("Hexavalent Chromium", "CrVI") tests and got none detects, but they were using a test that CEH doesn't think was sufficiently approbabitive or sufficiently granular. Should defendants have known that? And once CEH tells them that and shows them the test results, do they now have knowledge? These are interesting questions that maybe will be resolved in that suite." As stated in the Case Management Conference submitted to the court: "This case also presents expert issues as to the proper methods for testing for CrVI, which are not controversial as to many listed chemicals. For example, Defendants claim that ISO 17075 is the only test method appropriate to determine the amount of CrVI that leaches from leather, and that its detection limit of 3 parts per million (“ppm”) reflects the lowest level at which CrVI can be reliably tested." Companies that tested their product using ISO 17075, a validated method to test for Hexavalent Chromium in leather with a detection limit of 3 ppm that got not detect results relied on such a test to not place a warning on their product. Yet, Center For Environmental Health did not believe that the company used the correct method. However, ISO 17075 is the only validated method for testing CrVI in leather. Companies that have not detect results for Hexavalent Chromium using a validated method at an accredited laboratory should not just be automatically putting warnings on products, that is the definition of over warning. The Attorney General is responsible to review the test report submitted by the plaintiff at the time of filing to determine if it is valid and avoid a frivolous lawsuit and after reviewing such a test they stated to the Court: "First, unlike the more common exposures under Proposition 65 (lead, cadmium, acrylamide, phthalates), there have been few cases involving Chromium VI (Cr6), and the testing for Cr6 is difficult, since the chemical migrates between its hexavalent and trivalent forms. The courts will need to determine the appropriate testing methodology...The Attorney General is unable to serve as the arbiter of disputed scientific issues. That is the role of the courts." Instead of writing a letter to the noticing party to avoid a frivolous case or taking further action to determine if the plaintiff's test was valid, they just asked the court to do it. Further, the law provides an affirmative defense for companies that conducted tested within a year prior to the notice of violation or complaint California Code of Regulations Title 27 Section 25900. The Plaintiff is required to have information at the time of filing to prove that the Defendant will not be able to prove any affirmative defenses under the law. Companies that reached out to the Attorney General to share their non-detect ISO 17075 test reports for testing CrVI in leather to prove their defense under California Code of Regulations Title 27 Section 25900 were told that the Attorney General only looks at the Plaintiff's information and they should submit such information to the Court. It is the Attorney General's responsibility to avoid frivolous lawsuits, but instead of taking the time to review the defendant's information they just submitted it to the court. Similar things have happened when companies try to share to the Attorney General their defense under Health & Safety Code Section 25249.10(c). As stated by Jeffrey Margulies "So if you can provide a mechanism that allows us to get rid of those cases that don't have the plausible exposure mechanisms, then like you agree, then I think you'll see a lot of the prophylactic warnings go away." The system appears broken and unless there is a mechanism for the Defendants to share their defense without going to court, companies will continue to over warn. In addition, if there is no oversight to the plaintiff's test reports, which is often invalid, it could lead to over warning for companies aiming to avoid frivolous lawsuit. Here is what I propose: Similarly to the plaintiff uploading information to the state about the Defendant's product. I think the Defendant should have a place on their website to upload their compliance information to the Attorney General. If the Defendant is able to demonstrate their defense to the Attorney General that they can establish an affirmative defense, the attorney General should remove the claim. If the Attorney General cannot understand the science, instead of just asking the court to review, they should ask OEHHA to review and weigh in, since they are in charge of the Science of Prop 65. If neither the Attorney General or OEHHA can review such information, then a new Prop 65 division should be created to review the science that went into determining if a warning was required or not and prevent frivolous claims from being submitted to the court. Thank you for your consideration and for working hard to prevent over warning.