Clarifications Proposed for Prop. 65 “Clear and Reasonable” Warnings

December 3, 2018

California’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed clarifications on how businesses provide “clear and reasonable” warnings under Proposition 65. OEHHA said its proposed amendments respond to a numerous clarification requests, primarily from intermediate parties on their responsibilities for providing warnings that the current Prop. 65 regulations allocate between retailers and upstream entities.

Prop. 65 currently places primary responsibility for providing consumer product exposure warnings on product manufacturers, producers, packagers, importers, suppliers, and distributors. These businesses satisfy their duty to warn by providing a warning on the product label or by giving written notice and warning materials to the authorized retailer.

OEHHA now wants to amend these provisions to clarify that intermediate businesses in the chain of commerce may satisfy their obligation to provide a warning by providing notice either to the business to which they are selling or transferring the product or to the ultimate, retailer. These proposed amendments are intended to address situations where the original manufacturer, distributor, or importer may not know where the product will ultimately be sold to a consumer.

OEHHA’s proposed amendments would also clarify whose specific knowledge of an exposure may be imputed to the retailer. The current Prop. 65 regulations say that a retailer has actual knowledge if any employee in the organization has information, including lower-level employees, who could not be reasonably expected to evaluate the information and take action on behalf of the retailer. OEHHA’s had proposed that actual knowledge requires specific knowledge of the exposure to be received by an authorized agent or an employee in a position of sufficient responsibility that his or her knowledge can be imputed to the retailer.