Proposed Amendments to Article 6 Clear and Reasonable Warnings Section 25600.2 Responsibility to Provide Consumer Products Exposure Warnings

NOTICE IS HEREBY GIVEN that the Office of Environmental Health Hazard Assessment (OEHHA) proposes to amend Title 27, California Code of Regulations, section 25600.2, subsections (b), (c) and (f), Responsibility to Provide Consumer Product Exposure Warnings.^[1]  In August 2016, OEHHA adopted the new Article 6 of Title 27, California Code of Regulations, Section 25600 et seq. OEHHA adopted amendments to the regulations on November 20, 2017 to clarify and make more specific certain provisions of Article 6.  Based upon questions received and additional input from stakeholders, this rulemaking proposes additional clarifying changes to Section 25600.2, subsections (b), (c), and (f).    

PUBLIC PROCEEDINGS

In order to be considered, OEHHA must receive comments by 5:00 p.m. on December 31, 2018, 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.  Comments submitted in paper form can be mailed, faxed, 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

Fax: 916-323-2610

E-mail: P65Public.Comments@oehha.ca.gov

E-mail comments may be sent to P65Public.Comments@oehha.ca.gov.  Please include “Section 25600.2” in the subject line when submitting emailed comments. 

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 be scheduled on 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 December 17, 2018.  OEHHA will mail a notice of the hearing to the requester and interested parties on the Proposition 65 mailing list for regulatory public hearings.  The notice will also be posted on the OEHHA 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.  Mario Fernandez is a back‑up contact person for inquiries concerning processing of this action and is available at (916) 323‑2635 or mario.fernandez@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] These proposed amendments to the regulations would further clarify the regulatory provision implementing the statutory direction to place the primary obligation for providing a Proposition 65 warning on the product manufacturer, thus minimizing the impact of the warning requirements on the retail seller.

SPECIFIC BENEFITS OF THE PROPOSED REGULATIONS

The proposed regulatory action will facilitate businesses’ compliance with the Act by providing clarifying changes in subsections (b) and (c) concerning the responsibility for providing warnings under Proposition 65 and further clarify the term “actual knowledge” in subsection (f).  The health and welfare of California residents will likely benefit from ensuring that warnings are provided by the manufacturer and intermediate parties in the chain of commerce to the retail seller, so that the retail seller can provide these warnings to consumers before exposure to a listed chemical in a consumer product.  Businesses will also have more clarity concerning the level of specificity required in notices provided pursuant to Section 25600.2(b) and the express incorporation of existing law on imputation of knowledge to the business.

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 would 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 an existing regulation that is related to the responsibility of intermediate parties in the chain of commerce to pass along consumer product exposure warnings, and 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 the clarifying regulatory amendments.  The amendments do not impose any new costs because they simply clarify the responsibility of intermediate parties in the chain of commerce to pass along a warning for consumer products and further clarify the definition of “actual knowledge”. The action would not alter the requirement to provide a warning under the Act. Businesses will also have more clarity concerning the level of specificity required in notices provided pursuant to Section 25600.2(b) and the express incorporation of existing law on imputation of knowledge.

Creation or Elimination of Jobs within the State of California

The proposed regulatory action will not impact the creation or elimination of jobs within California. The action provides clarification and specificity to the existing regulations in terms of the responsibility of intermediate parties in the chain of commerce to pass along a warning for consumer products and further clarifies the definition of “actual knowledge”. 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 impact the creation of new businesses or the elimination of existing businesses within California.The action provides clarification and specificity to the existing regulations as to the responsibility of intermediate parties in the chain of commerce to pass along a warning for consumer products and further clarifies the definition of “actual knowledge” and the level of specificity required in notices provided pursuant to Section 25600.2(b). 

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 regulations.

Benefits of the Proposed Regulation

Affected businesses will likely benefit from the proposed regulatory action because the amendments provide clarifying guidance concerning the responsibility to provide warnings for consumer products under Proposition 65 and further clarifies the definition of “actual knowledge”.  The health and welfare of California residents will likely benefit from the increased clarity that will help ensure that the manufacturer and intermediate parties in the chain of distribution provide warnings to the retail seller, so that the retail seller can provide warnings to consumers before exposure to a listed chemical in a consumer product.  Businesses will also have more clarity concerning the level of specificity required in the notices provided pursuant to Section 25600.2(b) and the express incorporation of existing law on imputation of knowledge.

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.

EFFECT ON SMALL BUSINESSES

The proposed regulatory action will not adversely impact 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 regulation, all the information upon which the regulation is based, and the text of the proposed regulation.  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 proposed regulation 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 regulation and the full text will be mailed to individuals who testified or submitted oral or written comments at the public hearing, whose comments were received by OEHHA during the public comment period, and anyone who requests notification from OEHHA of the availability of such change.  Copies of the notice and the changed regulation 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

Dated: November 16, 2018