Request to the Proposition 65 Food Warning Workgroup - Your Feedback is Requested

May 27, 2010

Based on the recent comments we have received from stakeholders, we have re-drafted the possible regulatory language for the Retail Food Warning Program and developed a draft initial statement of reasons for the regulation. Attached are copies of these two documents. For ease of review, we have only included the possible regulatory language, rather than the entire regulation.

The following is a summary of the major stakeholder issues that we addressed in this version of the regulation:

The program will be implemented on a pilot basis with a sunset date of 2014 in order for us to gauge participation and consumer response and ensure the program meets its objectives.The regulation will not become effective (regardless of when it is adopted) until OEHHA provides notice that the database and other necessary components are in place.
The option for the food retailer to use an in-store compendium of warning information has been put back in the regulation. The compendium must be used in conjunction with an in-store product identifier.
A separate compliance mechanism has been established for small food retailers with less than 1500 square feet of space devoted to food products.
Language has been included to clarify the requirements for food providers to identify listed chemicals in the food products on the website.
Language has been included to clarify that a food retailer may become responsible for providing a warning for a food product if the food retailer takes an action that creates a Proposition 65 chemical in the food product that was not present when the food was received from the food provider. This provision was unintentionally left out of the prior version of the regulation.
Warnings for mercury exposures from fresh fish are now included in the program, with certain restrictions.
A limited opportunity to cure minor compliance issues has been included for food retailers
A provision has been added to clarify that non-compliance with some aspect of the food warning program does not establish a per se violation of the statutory warning requirements.

We need your feedback regarding the current version of the regulation and the draft statement of reasons by no later than June 15, 2010.

OEHHA is planning to complete the regulatory process for the initial set-up of this program before the end of the year. Therefore, we plan to start the formal regulatory process next month. Feel free to call or e-mail me if you have questions or wish to discuss these drafts further. We are committed to continuing to work collaboratively with our stakeholder group as this process proceeds.

Best Regards,
Carol J. Monahan-Cummings
Chief Counsel
Office of Environmental Health Hazard Assessment