[Source: California Chamber of Commerce] The latest proposed revisions to the state’s Proposition 65 warning regulations are problematic and unworkable, the California Chamber of Commerce and a broad coalition explain in a letter to the agency leading the rule drafting.
The revisions proposed by the Office of Environmental Health Hazard Assessment (OEHHA) take several steps backwards by introducing several new and extraordinarily problematic concepts that previous drafts never contemplated, the CalChamber and coalition comment.
The CalChamber-led coalition includes more than 200 organizations that collectively represent nearly every major business sector on which OEHHA’s proposal would have a direct impact.
The coalition has been working with OEHHA over nearly three years now and noted that the state of the current proposal, issued on March 25, 2016, “is particularly concerning given the late stage of this regulatory process.” The deadline for OEHHA to finalize the rule is November 27, 2016.
Undermines Governor’s Calls for Reform
The coalition points out that the current draft proposal undermines the Governor’s calls for Proposition 65 reform by exacerbating the already-problematic Proposition 65 litigation climate and making compliance so difficult that the only protective measure businesses can take to reduce the inevitable threat of litigation is to “overwarn” about exposures that do not even exist.
Those results will harm businesses, send the wrong message to consumers, and, more generally, will further worsen the reputation of Proposition 65 as a well-intended law that is overly abused by private enforcers who use the law solely for personal financial gain, the coalition writes.
OEHHA’s proposed warning regulations will substantially change the way in which businesses provide the warnings required by Proposition 65. The coalition points out that OEHHA’s proposal would:
- Flip the existing statutory burden on businesses by requiring them to affirmatively demonstrate that a warning is required;
- Substantially increase litigation by creating a new breed of “bad warning,” litigation that does not exist today, wherein despite using the precise “safe harbor” warning content provided by OEHHA, businesses would nonetheless be challenged for failing to provide an adequate warning;
- Impose an unworkable, extraordinarily costly and elevated requirement on those providing warnings for environmental exposures;
- Infringe on businesses’ constitutionally protected commercial speech and due process rights;
- Require, for the first time since Proposition 65’s passage in 1986, two warnings for one product; and
- Eliminate the long-accepted method of transmitting warnings via owners’ manuals, which typically contain the most significant safety information for many products.
Additionally, the proposal contains several ambiguities and drafting flaws that require clarification.
CalChamber’s 24-page comment letter elaborates on these issues in great detail and, where applicable, proposes regulatory language to address them.
Because the proposal introduces entirely new concepts on which CalChamber has not yet had an opportunity to comment, the letter requests that OEHHA revise the proposal and circulate another draft for an additional round of public review and comment. CalChamber will continue to take the lead role on this regulatory proposal moving forward.
Source: California Chamber of Commerce
May 12, 2016