Industry Points Out Ambiguity in California’s Proposed Requirement to List Individual Chemicals in Prop 65 Warnings

California’s proposed regulatory requirement to identify at least some of the Proposition 65-listed chemicals in the required warning is ambiguous, according to comments submitted by industry. Proposition 65—also known as the Safe Drinking Water and Toxic Enforcement Act of 1986—prohibits knowingly exposing any individual to a listed chemical without first providing a "clear and reasonable warning" to such individual. In November 2015, the California Office of Environmental Health Hazard Assessment (OEHHA) proposed changes to the “clear and reasonable” warning requirements (Title 27 California Code of Regulations, Article 6).

The proposed “Safe Harbor Clear and Reasonable Warnings—Methods and Content” states that “a warning meets the requirement of this article if the name of one or more of the listed chemicals for which the warning is being provided is included in the text of the warning, to the extent that an exposure to that chemical or chemicals is at a level that requires a warning.” (Proposed Section 25601(c) of Article 6, emphasis added) The California Chamber of Commerce and other organizations (the Coalition) cautioned, in comments on the proposal, that “one or more of the listed chemicals” suggests that this could be interpreted to mean that if there are more than one, the warning would have to specify those as well. Yet, according to the Coalition’s understanding, OEHHA’s intent is to allow businesses to specify one chemical in the warning, even if the warning is being provided for multiple chemicals.

“[G]iven the current drafting ambiguity, some in the private enforcement community may interpret the language to mean that all chemicals must be specified in the warning,” wrote the Coalition, adding, “Thus, businesses that specify only one chemical when warning for multiple listed chemicals may be targeted for private enforcement actions and be required to defend such litigation in court at significant expense.”

To clear up the ambiguity, the Coalition suggested adding the sentence in bold below to Section 25601(c):

Except as provided in Section 25603(c), a warning meets the requirements of this article if the name of one or more of the listed chemicals for which the warning is being provided is included in the text of the warning, to the extent that an exposure to that chemical or chemicals is at a level that requires a warning. If a warning is being provided for more than one listed chemical, the warning meets the requirements of this article if the name of any one of the listed chemicals for which the warning is being provided is included in the text of the warning.

Another possible point of confusion, according to the Coalition, is when an exposure involves both a listed carcinogen and a reproductive toxicant, and a business elects to identify only one of the substances. For example, if Chemical A (a carcinogen) is listed in the warning, the warning could falsely suggest to the consumer that Chemical A also causes reproductive harm even though it does not.

Also commenting on the proposed requirement to list specific chemical(s) in a warning, the American Chemistry Council (ACC) urged OEHHA to be as clear as possible about what is required and who in the supply chain has primary responsibility for making the chemical selection. ACC recommended that the product manufacturer have primary responsibility to select any chemical contained in the product for a product label, and that the regulations should clearly state that the choice cannot be challenged by private enforcers because they would have preferred a different chemical be named.

The ambiguity could also extend to consumers. In comments on the proposal, the American Coating Association (ACA) pointed out that:

1. Requiring companies to choose one or more chemicals to include on a warning will only confuse consumers given that no criteria is provided for selecting what chemical(s) to list on a warning.

2. The warnings will not be helpful to consumers if different companies choose different chemicals to include on a warning for the same product.

3. Consumers will be led to believe that because certain chemicals are on a product warning, that they are predominant or present at a higher level than other chemicals, or that they present a higher risk of exposure or harm than other chemicals in the product.

Comments to the proposed revisions to clear and reasonable warnings required under Proposition 65 can be accessed through OEHHA’s website.