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Clarifications to California’s Proposition 65 Warning Requirements under Consideration

California’s Office of Environmental Health Hazard Assessment will hold a hearing on 17 December and will accept input from interested parties by 31 December on a proposal to clarify recent changes concerning the responsibility for providing warnings under California’s Safe Drinking Water and Toxic Enforcement Act (commonly known as Proposition 65) as well as the term “actual knowledge” in subsection (f) of the regulations. Proposition 65 requires businesses to inform consumers in the state about significant amounts of listed chemicals in consumer products, food, drugs and other goods, and this requirement is generally fulfilled by labelling products with a “clear and reasonable” warning.

Specifically, OEHHA is proposing to clarify that intermediate businesses in the chain of commerce may satisfy their obligation to provide a warning by providing a written notice and warning materials directly to either the authorised agent for the business to which they are selling or transferring the product or the authorised agent for the retail seller. OEHHA believes this clarification is needed because in some situations the original manufacturer, distributor, importer or others in the chain of commerce may not know where or by whom the product will ultimately be sold to a consumer. Thus, OEHHA intends to clarify that a given business in the chain of commerce need only provide the notice and warning materials directly to the designated agent for the business to whom it is transferring or selling the product, or provide the notice and warning materials to the retail seller in order to discharge their duty to warn under the Act. In either case, the business providing the notice and warning materials must obtain verification of receipt.

Subsection (e)(5) provides that a retail seller is responsible for providing a warning when it has “actual knowledge” of a potential consumer product exposure and there is no manufacturer, producer, packager, importer, supplier or distributor of the product who is subject to the Act, and who has a designated agent for service of process or a place of business in California. Subsection (f) defines “actual knowledge” as “specific knowledge of the consumer product exposure received by the retail seller from any reliable source.” OEHHA is proposing to clarify the level of specificity for “actual knowledge” as well as the persons whose specific knowledge of a consumer product exposure can be imputed to the retail seller.

OEHHA states that if these changes are adopted 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. Moreover, businesses will 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.

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