California Law to Change Requirements under Proposition 65

The California Legislature has proposed a bill that would amend certain provisions of the Safe Drinking Water and Toxic Enforcement Act of 1986, more commonly known as “Proposition 65.” The proposed bill needs a two-thirds majority vote in both chambers in order to pass. A vote is expected to happen soon.

The proposed legislation states that a regulation specifying the scientific process and criteria to be applied in making determinations for substances known to the state to cause reproductive toxicity will be adopted by January 1, 2015.

One amendment would make an exemption more difficult to achieve by requiring the responsible party to show:

• the exposure [of the chemical] poses no significant risk assuming lifetime exposure at the level in question for substances known to the state to cause cancer, and that
• the exposure [of the chemical] is at or below a level determined by the lead agency to pose no significant risk of reproductive harm based on human studies with an adequate margin of safety for substances known to the state to cause reproductive toxicity. If the lead agency has not made such a determination, no warning shall be required when the exposure will have no observable effect assuming exposure at one thousand (1000) times the level in question.

By December 1, 2015, regulations establishing minimum requirements for a “clear and reasonable” warning must be promulgated. The legislation lists the following requirements for a “clear and reasonable” warning:

1. Approved warning methods and content specifically for exposures to listed chemicals from consumer products or foods sold via the Internet or at retail establishments, including alternatives to on-product warnings.
2. Approved warning methods and content for area-specific warnings concerning exposures to listed chemicals.
3. Approved methods for providing additional information to persons who may be exposed to a listed chemical, including, where feasible, the name of the chemical(s) that the person is being exposed to.
4. Reasonable transition times for businesses to come into compliance with these regulations.
5. A process for reviewing and approving existing warnings adopted in court judgments or settlements entered prior to December 1, 2015.
6. Minimum elements that must be included in all warnings. These elements shall include, but not be limited to, the identification of the health effect(s) for which the chemical(s) is listed, such as cancer, male reproductive toxicity, female reproductive toxicity, or developmental toxicity; information on how a person is being exposed and, where possible, how to avoid or reduce the exposure.

More information on Prop 65 is available.

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