The California Office of Environmental Health Hazard Assessment (OEHHA), the California agency which implements Proposition 651, has adopted a final regulation establishing a new website. The regulation is effective on April 1, 2016. The website, which will be known ashttp://www.p65warnings.ca.gov does not yet exist but will be built. This is a novel venture, wherein a governmental agency will populate a website based on information it obtains from the regulated community, including trade associations. While other websites mandate manufacturers to submit factual information on product ingredients (e.g., the California Safe Cosmetics Act requires disclosure of certain product ingredients be posted on a website), this website may include statements about exposures to Proposition 65 listed chemicals and even (some fear) legal conclusions or “compelled speech” with which a regulated person providing information may not concur.
OEHHA controls the website. OEHHA alone will populate the website. OEHHA must develop a process by which persons can request corrections of inaccurate material. The regulation itself does not describe that process. The extent of the regulated community’s ability to contest and correct website information remains an open question.
Manufacturers’ Disclosure Obligations. The regulations expressly outline only one way for OEHHA to obtain information for the website – by asking manufacturers. Manufacturers need not submit information unless OEHHA requests it. Under the regulations, OEHHA may ask any entity already providing a Proposition 65 warning for the following information:
The name and contact information for the person responding to OEHHA
The manufacturer’s name and contact information
The name of the listed chemical(s) for which the warning is being provided
The location of the chemical(s) in the product
The concentration of the chemical(s) in the final product
The components or substrate that contains the chemical(s)
The concentration of the chemical(s) in the components or substrates
The anticipated routes and pathways of exposure2
The estimated level of exposure.
OEHHA also may request: “Any other related information concerning exposures to listed chemicals for which warnings are being provided pursuant to Section 25249.6 of the Act.” In its Final Statement of Reasons, OEHHA indicated this is a “narrow” catch-all, especially compared to previously proposed text which afforded broader authority. How aggressively OEHHA will use this “catch-all” remains to be seen.
Today, Proposition 65 does not mandate that a person providing a warning identify the specific listed chemical or chemicals for which the warning is being provided. OEHHA is concerned, in part, about “over warning,” or “precautionary warnings” whereby persons include Proposition 65 warnings without a comprehensive exposure assessment. This regulation in part also anticipates another new regulation OEHHA is developing, a regulation which will amend the existing warning options. Under the proposed new warning regulations, a company will need to disclose at least one chemical in the warning text. This website regulation accomplishes the same goal, albeit on a product by product basis and only when OEHHA requests information. OEHHA does not intend to identify products by brand name on the website.
When and What Responses are Due? An entity will have 90 days to respond to an OEHHA information request. An entity only must provide information on hand. It does not have to create or seek out information. This appear simple, but may be complicated in practice. For example, manufacturers may have theories or “best guesses” based on years of practice in the industry about which components or substrates contain a listed chemical. Assumptions may have been made. Not all decision-making is documented. Some is based on third party or trade association information which may not have been independently verified. Some information is subject to various contractual confidentiality obligations. In short, time is needed to reveal how the process will work.
Exceptions to Manufacturer’s Disclosure Obligations. First, manufacturers need not reply to an OEHHA information request individually in all circumstances. If OEHHA requests information from two or more entities in the same industry, they may respond through a trade group. During the rule-making process, OEHHA suggested trade associations will play a role in providing information to populate the website. Hence, we envision OEHHA will send information requests in a manner which will allow trade association responses, at least initially as the website is being populated. This may allow some industries to standardize or harmonize information being provided to OEHHA. That said, trade associations often lack funding for new obligations, may be unable to coordinate in time and members may, in fact, have such disparate data that individual manufacturer responses may be necessary. Some members may object to a trade association response when they were not targeted individually by OEHHA. Again, how information submittals will work in practice is difficult to foresee.
Second, entities do not have to provide information protected by attorney-client privilege or the attorney work-product doctrine. Entities must provide trade secret information but can designate it as such; OEHHA cannot disclose it without first giving notice and an opportunity (30 days) to contest. How far OEHHA is willing to push in favor of disclosing trade secrets is another unknown variable.
Additional Considerations. While OEHHA’s regulations do not provide a mechanism for Proposition 65 plaintiffs to provide information for the website (that was stricken from an earlier draft of the regulation), it also does not prohibit them from doing so. One might anticipate that certain Proposition 65 plaintiffs will funnel information to OEHHA. OEHHA also has independent sources of information. Hence, we do not expect that the website will be limited to manufacturer or trade association provided information. Mixing information from multiple sources might yield website information which could be deemed misleading or distorted by some persons.