On Friday, November 27, 2015, California’s Office of Environmental Health Hazard Assessment (OEHHA) formally withdrew its controversial proposed Proposition 65 warning regulations and issued a new, separate proposal, thus, restarting the rulemaking process. The withdrawn regulations1, originally issued in January 2015, met with considerable pushback from stakeholders who viewed them as ill-conceived , vague, and difficult to implement. Furthermore, the proposed text undercut the Governor’s announced goal of reducing Prop 65 lawsuits.2
Meanwhile, the language in OEHHA’s newest proposal does little to address the most serious stakeholder concerns. If adopted, the new proposal would continue certain major aspects of Prop. 65’s legacy – that of substantially burdening businesses in and out of California by providing plaintiff’s with new ways to bring frivolous lawsuits and force settlement of dubious claims. The newest proposal will do little if anything to better inform Californians. Below we highlight some of the more alarming provisions, as well as several key differences between the new and withdrawn proposals.
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Further, as part of the new rulemaking and at the request of business stakeholders, OEHHA finally conducted an economic impact assessment on the proposed regulations and consequently recognized the substantial financial burden that implementation of the proposal would impose on businesses, estimating a statewide financial impact of between $33.9 to $54.4 million dollars. This estimate does not include the more substantial costs to businesses associated with Proposition 65, including conducting exposure assessments, product testing, product reformulation, defending against a citizen suit, or paying attorneys’ fees and penalties, nor does it account for impacts to businesses located outside of California.
Stakeholders’ comments on the initial regulatory proposal caused OEHHA to pause and develop a new warning regulation proposal. Unfortunately, this latest iteration still misses the mark -- producing little beneficial regulatory reform for Californians and entities doing business in California. Like the one before it, this proposal enhances the opportunities for plaintiffs’ lawyers to allege violations (real or illusory) and initiate lawsuits, and continuing to make it a challenge to do business in the Golden State.
OEHHA is accepting comments on these proposed changes until January 22, 2016, with a public hearing scheduled for January 13, 2016. Please let us know if you have questions or concerns about this latest OEHHA proposal.