California approves Prop 65 website despite industry objections

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California's Office of Environmental Health Hazard Assessment (Oehha) has adopted a regulation that will create a “Lead Agency website” to provide information to the public on exposure to chemicals that require warning disclosure under Proposition 65 (CW 1 October 2015).

The website has been agreed, despite continued protest from a coalition of more than 170 businesses and trade groups, including the California Chamber of Commerce and the American Chemistry Council (ACC).

They have said that the agency lacks the statutory authority to mandate that companies furnish supplemental information.

Under the Regulation, which takes effect on 1 April, a manufacturer, producer, distributor or importer of a product giving a Prop 65 warning will have to provide, within 90 days of the agency's request:

  • the name of the listed chemical(s) for which warning is given;
  • the location of the chemical(s) in products that require warning under Prop 65;
  • the concentration of the chemical(s) in these final products;
  • anticipated routes or pathways of exposure to listed chemicals; and
  • estimated levels of exposure to the chemical(s).

In response to comments submitted during the consultation, Oehha added a provision to clarify that the rule “does not require a business to perform any new or additional testing or analysis, for the purpose of responding to a request made by the lead agency”.

It also added certain protections for information designated as trade secret, and also clarified the process by which a person could request a correction of information appearing on the website.

However, several stakeholder requests were left unadopted, including that:

  • manufacturers should be notified and have the opportunity to review data about their products, before it is publicly posted to the website;
  • Oehha should determine a de minimis reporting threshold; and
  • companies should be granted six months – rather than 90 days – to respond to agency requests for information.

Industry objections over the agency's statutory authority also remained.

In September comments, the coalition said that “Proposition 65 does not empower Oehha to require manufacturers, producers, importers and distributors to provide it with information related to their products ... or regarding their decisions to provide Proposition 65 warnings for listed chemicals.”

In separate comments, the ACC also said that the "website proposal, as currently drafted, likely [violates] the First Amendment of the US Constitution with respect to compelled speech principles.”

However, in its final statement of reason, Oehha said that Prop 65 is a right-to-know law, and that the agency is responsible for implementing rules that “further its purposes”.

The information to be provided on the website “ is inextricably linked to the statutory right of the people of California to be informed about exposures to listed chemicals”, it added.

The ACC told Chemical Watch: “In a dynamic and changing marketplace, there are many open questions whether [Oehha] will be able to maintain this yet-to-be created website in a manner that provides accurate, meaningful and up-to-date information to consumers.”

Kelly Franklin