Regulations adopted by California’s Office of Environmental Health Hazard Assessment (OEHHA) in August 2016 become operative on Aug. 30, 2018. While the long-awaited regulations address several topics, the key change affects the style of warnings that must be given when a product, menu item or work space, for example, exceeds safe harbor thresholds or otherwise requires a warning. Instead of the old warning style that did not specify the chemical that triggers the warning, the new warning requires specification of the Prop 65-listed chemical (or chemicals) and a web address where a consumer or employee can find out more information about the warning and why it exists. The new warning also features a triangle and exclamation point to further draw attention to it. Here is an example warning for a product containing arsenic above the safe harbor level:
The new warnings become mandatory for products manufactured on and after Aug. 30, 2018, but businesses would be smart to act well in advance of that date to revise existing warnings. As with other areas of Prop 65, the new warning requirements will likely be well enforced by private plaintiffs. In addition to these new warning requirements, there are new specific warnings for alcoholic beverages, food and non-alcoholic beverages, prescription drugs, dental care, wood dust, furniture products, diesel engines, vehicles, recreational vessels, enclosed parking facilities, amusement parks, petroleum products, service stations and vehicle repair facilities, and designated smoking areas.
Finally, the new regulations put the burden of Prop 65 compliance primarily on product manufacturers, rather than downstream distributors or retailers, though manufacturers can enter written agreements to have downstream entities comply. There are several other issues addressed by the new regulations of lesser importance.
While the new regulations impose different requirements, at the same time Prop 65’s scope will only continue to widen in 2018 as new chemicals are listed. The most recent proposed listing concerns TRIM® VX, a metalworking fluid used as a lubricant and coolant liquid for cleaning tools and parts during cutting, drilling, milling, and grinding. In the pesticide sector, despite pending challenges in state and federal court to derail the listing of glyphosate (none of which have had success yet), OEHHA in the meantime finalized its safe harbor level on April 10, 2018 at 1,100 micrograms per day.