California Proposes Further Prop. 65 Amendment

May 16, 2018

California’s Office of Health Hazard Assessment (OEHHA) has published proposed amendments to the State’s Proposition 65 “Clear and Reasonable Warning” regulations which may affect some ILMA members who market pesticide products to customers in California either directly or through a distribution chain.

OEHHA’s proposal may affect those ILMA Supplier Member companies that market pesticide products whose labels are subject to EPA approval under its Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) regulations.

Such products include biocides intended for tank side use to extend the life of water-miscible metalworking fluids and formulated metalworking fluid products which incorporate such biocides and whose producers claim biocidal properties for the product. ILMA Manufacturing Members who distribute biocidal products for use by their end-user customers could also be affected by the proposal.

Under the new Proposition 65 Clear and Reasonable Warning regulations, which take effect on August 30, 2018, businesses such as machine shops which employ more than ten people must change now-familiar Proposition 65 “safe harbor” warning language to that required by the new regulations.

The Act requires businesses to provide a clear and reasonable warning before they cause an exposure to a chemical listed as known to the state to cause cancer or reproductive toxicity. The proposed amendment to the regulations would add optional signal words that would be allowed in narrow circumstances where a warning is provided on a product regulated under FIFRA and the signal word “warning” conflicts with the FIFRA requirements.

Under the new proposed amendment to the regulations, pesticide products which already, as part of the FIFRA-approved label, incorporate the signal word “Warning,” would be permitted to change that signal word used with a Prop 65 safe harbor warning to “Attention” or “Notice” in place of the signal word “Warning.” A so-called “long form” version of the new safe harbor language for consumer products and certain occupational exposures for a biocidal additive that releases formaldehyde might read:

WARNING    This product can expose you to formaldehyde, which is known to the State of California to cause cancer. For more information go to www.P65Warnings.ca.gov.
   
If the approved FIFRA label for a pesticide product already included the word WARNING, then the proposed amendment would allow the use of the alternative signal word ATTENTION or NOTICE.
While ILMA understands that members may include in a product Safety Data Sheet (SDS) information about whether any chemical listed by OEHHA under Proposition 65 is contained in that product in Section 15 of that SDS, ILMA is not clear on who in the supply chain, if the proposed amendment is agreed upon, would be responsible for including the soon-to-be-required “safe harbor” language for such biocidal products.

ILMA has sent a letter to OEHHA asking for clarification on this and several other issues related to the new Clear and Reasonable Warning language requirements that are effective August 30.