Notice of Proposed Rulemaking: Article 6 Clear and Reasonable Warnings Sections 25602, 25607, 25607.1, and 25607.3

NOTICE IS HEREBY GIVEN that the Office of Environmental Health Hazard Assessment (OEHHA) proposes to amend Title 27, California Code of Regulations, sections 25602, 25607, 25607.1, and 25607.3 to clarify certain provisions of the regulations addressing consumer product exposure warnings, specific product, chemical and area exposure warnings, food exposure warnings, and alcoholic beverage exposure warnings.^[1]  OEHHA adopted the new Article 6 of Title 27, California Code of Regulations, Section 25600 et seq. in August 2016 and has since adopted several amendments to the regulations to clarify and make specific certain provisions of Article 6.  This rulemaking proposes additional clarifying changes to Section 25602(a), (a)(2), (b) and (c), Section 25607(a) - (d), Section 25607.1(a) and Section 25607.3(a), (a)(1)-(4) and (b).      

PUBLIC PROCEEDINGS

In order to be considered, OEHHA must receive comments on or before March 16, 2020, the designated close of the written comment period.  All comments will be posted on the OEHHA website at the close of the public comment period. 

Comments may be submitted electronically through our website at https://oehha.ca.gov/comments.  In the alternative, comments can be mailed or delivered in person to the address below.

Monet Vela
Office of Environmental Health Hazard Assessment
1001 I Street, 23^rd Floor

P. O. Box 4010
Sacramento, California 95812-4010

Telephone: 916-323-2517

OEHHA is subject to the California Public Records Act and other laws that require the release of certain information upon request.  If you provide comments, please be aware that your name, address and e-mail may be available to third parties.

A public hearing on these proposed regulatory amendments will only be scheduled upon request.  To request a hearing, send an e-mail to Monet Vela at monet.vela@oehha.ca.gov or to the address listed above by no later than March 2, 2020.  If such a request is made, OEHHA will mail a notice of the hearing to the requester and interested parties on the Proposition 65 mailing list for regulatory public hearings, and the notice will be posted on OEHHA’s web site at least ten days before the public hearing date.  The notice will provide the date, time, and location of the hearing. 

CONTACT

Please direct inquiries concerning the proposed regulatory action described in this notice to Monet Vela at (916) 323-2517, or by e-mail to monet.vela@oehha.ca.gov.  Carl DeNigris is a back‑up contact person for inquiries concerning processing of this action and is available at (916) 322‑5624 or carl.denigris@oehha.ca.gov.

AUTHORITY

Health and Safety Code section 25249.12.

REFERENCE

Health and Safety Code sections 25249.6, 25249.7 and 25249.11(f).

INFORMATIVE DIGEST/POLICY STATEMENT OVERVIEW

BACKGROUND

OEHHA is the lead agency that implements Proposition 65^[2] and has the authority to promulgate and amend regulations to further the purposes of the Act.  The Act requires businesses to provide a clear and reasonable warning before they cause an exposure to a chemical listed as known to the state to cause cancer or reproductive toxicity.^[3] The proposed amendments will clarify the requirements for providing safe harbor warnings for products sold on the internet, in catalogs, and certain provisions specific to alcoholic beverage warnings.  These amendments track the provisions of a recently proposed settlement between the Attorney General’s Office and a number of retailers of alcoholic beverages, thus allowing any alcoholic beverage manufacturer or retailer to use warning methods proposed in that settlement.

SPECIFIC BENEFITS OF THE PROPOSED REGULATIONS

The proposed regulatory action will facilitate businesses’ compliance with the Act by providing clarifying changes to the regulations as they relate to specific consumer product exposure warnings for products sold over the internet or through a catalog.  The changes will also clarify that internet warnings are required for alcoholic beverage sales and update existing provisions to address other methods for providing warnings for alcoholic beverages.   These changes track the provisions of a recently proposed settlement between the Attorney General’s Office and a number of retailers of alcoholic beverages, thus allowing any alcoholic beverage manufacturer or retailer to use warning methods proposed in that settlement.  The health and welfare of California residents will likely benefit by increasing the public’s ability to understand the warnings they receive for certain consumer products they may choose to purchase and the manner by which they receive those warnings.  Businesses will also have more clarity concerning the provision of warnings for consumer products sold via the internet or by catalog, including alcoholic beverages.

NO INCONSISTENCY OR INCOMPATIBILITY WITH EXISTING REGULATIONS

OEHHA has conducted an evaluation and has determined that Article 6 is the only regulation concerning Proposition 65 warnings.  Therefore, the proposed regulatory action is neither inconsistent nor incompatible with any other existing state regulations.  The action does not change the existing warning requirements on businesses subject to Proposition 65 or state or local agencies, and does not address compliance with any other law or regulation.

LOCAL MANDATE/FISCAL IMPACT

Because Proposition 65 by its terms^[4] does not apply to local agencies or school districts, OEHHA has determined the proposed regulatory action does not impose a mandate on local agencies or school districts; nor does it require reimbursement by the State pursuant to Part 7 (commencing with Section 17500) of Division 4 of the Government Code.  OEHHA has also determined that no nondiscretionary costs or savings to local agencies or school districts will result from the proposed regulatory action, nor will there be any costs or savings to the state or in federal funding to the state because of the proposed regulatory action.

EFFECT ON HOUSING COSTS

OEHHA has initially determined that the proposed regulatory action will have no effect on housing costs because it does not impose any significant new requirements on any business.

SIGNIFICANT STATEWIDE ADVERSE ECONOMIC IMPACT DIRECTLY AFFECTING BUSINESS, INCLUDING ABILITY TO COMPETE

The proposed regulatory action clarifies existing regulations for safe-harbor warning methods for products sold on the internet and through catalogs, and provides more clarity regarding warning methods for alcoholic beverages, including those sold on the internet or delivered to consumers. The proposed action does not impose any significant new requirements on those businesses.  OEHHA has therefore made an initial determination that the adoption of this action will not have a significant statewide adverse economic impact directly affecting businesses, including the ability of California businesses to compete with businesses in other states.

RESULTS OF ECONOMIC IMPACT ANALYSIS (Gov. Code section 11346.3(b))

OEHHA finds there will be no economic impact related to clarifying the safe-harbor warning methods for products sold on the internet and through catalogs, including warning methods for alcoholic beverages.  The amendments do not impose any new costs because they simply clarify these safe-harbor warning methods.  The action would not alter the requirement to provide a warning under the Act; it simply modifies non-mandatory safe harbor provisions in the existing regulations.

Creation or Elimination of Jobs within the State of California

The proposed regulatory action will not affect the creation or elimination of jobs within California. The action provides clarity and specificity to the existing safe harbor warning methods for internet and catalog sales, including the sale of alcoholic beverages. It does not alter the requirement to provide a warning under the Act.

Creation of New Businesses or Elimination of Existing Businesses within the State of California

The proposed regulatory action will not affect the creation of new businesses or the elimination of existing businesses within California. The action provides clarification and specificity to the existing safe harbor warning methods for internet and catalog sales, including the sale of alcoholic beverages.   

The Expansion of Businesses Currently Doing Business within the State

OEHHA does not anticipate any major impact on the expansion of businesses currently doing business within the state.  The action provides clarification and specificity to the existing safe harbor warning methods for internet and catalog sales, including the sale of alcoholic beverages.

Benefits of the Proposed Regulation

Affected businesses will likely benefit from the proposed regulatory action because the amendments provide guidance concerning the manner in which safe-harbor warnings are provided for consumer products sold via the internet or by catalog.  For alcoholic beverages, the amendments provide clarity concerning when and how to provide the safe-harbor warning to the purchaser or delivery recipient during internet sales of such products and prior to consumption, and track the provisions of a recently proposed settlement between the Attorney General’s Office and a number of retailers of alcoholic beverages.  The health and welfare of California residents will likely benefit by increasing the public’s ability to receive timely warnings for certain consumer products, particularly alcoholic beverages, that they purchase via the internet or by catalog, including alcoholic beverages delivered to the consumer.

COST IMPACTS ON REPRESENTATIVE PERSON OR BUSINESS

OEHHA is not aware of any cost impacts that a representative private person or business would necessarily incur in reasonable compliance with the proposed regulatory action.  The action does not impose any new requirements upon private persons or businesses; it simply clarifies existing provisions of the regulations.

EFFECT ON SMALL BUSINESSES

The proposed regulatory action will not adversely affect very small businesses because Proposition 65 is limited by its terms to businesses with 10 or more employees.^[5]

CONSIDERATION OF ALTERNATIVES

Pursuant to Government Code section 11346.5(a)(13), OEHHA must determine that no reasonable alternative considered by OEHHA, or that has otherwise been identified and brought to the attention of OEHHA, would be more effective in carrying out the purpose for which Proposition 65 is proposed, would be as effective and less burdensome to affected private persons than the proposed action, or would be more cost-effective to affected private persons and equally effective in implementing the statutory policy or other provision of law.

AVAILABILITY OF STATEMENT OF REASONS AND TEXT OF PROPOSED REGULATIONS

OEHHA has prepared and has available for public review an Initial Statement of Reasons for the proposed amendments to the regulations, all the information upon which the amendments are based, and the text of the proposed amendments.  These documents are available on OEHHA’s web site at www.oehha.ca.gov.

AVAILABILITY OF CHANGED OR MODIFIED TEXT

The full text of any amendment to the regulations that is changed or modified from the express terms of this proposed action will be made available at least 15 days prior to the date on which OEHHA adopts the resulting regulation.  Notice of the comment period on the revised proposed regulatory amendments and the full text will be sent to individuals whose comments were received by OEHHA during the public comment period, individuals who testified or submitted oral or written comments at a public hearing if one is held, and anyone who requests notification from OEHHA of the availability of such changes.  Copies of the notice and the changes to the proposed amendments will also be available on the OEHHA Web site at www.oehha.ca.gov.

AVAILABILITY OF THE FINAL STATEMENT OF REASONS

A copy of the Final Statement of Reasons may be obtained, when it becomes available, from Monet Vela at the e-mail or telephone number indicated above.  The Final Statement of Reasons will also be available on OEHHA’s web site at www.oehha.ca.gov.

OFFICE OF ENVIRONMENTAL
HEALTH HAZARD ASSESSMENT

Allan Hirsch
Chief Deputy Director