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California adopts changes to Prop 65 warning requirements

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California’s Office of Environmental Health Hazard Assessment has adopted amendments to how "clear and reasonable warning" is provided under Proposition 65.

Among changes, the update will require the warnings to contain the name of at least one substance for which notice is being provided under the law. A pictogram – an exclamation mark within an equilateral triangle – must also be included.

Warning statements under the new law shall also direct consumers to the new Prop 65 website, maintained by Oehha, which contains supplemental information on listed substances.

The regulatory action comes after more than a year and a half of consultation on two separate proposals. But a coalition of more than 200 industry groups has remained concerned with several provisions throughout.

The American Chemistry Council’s Karyn Schmidt told Chemical Watch that the requirements “will simply exacerbate Proposition 65’s problems of overwarning, consumer confusion and rampant lawsuit abuse”.

“Oehha’s new warning regulation does not remedy the fundamental problem with Proposition 65 labels: they fail to communicate risk to consumers,” said Ms Schmidt. And “requiring labels to arbitrarily list one or more chemicals and include a pictogram hazard symbol does nothing to improve the quality or the meaning of information conveyed to consumers,” she added.

The ACC also maintains that a provision in the law, which limits the information that may be included to supplement a Prop 65 warning, “violates affected businesses’ First Amendment rights”.

But in its Final Statement of Reason (FSOR), Oehha says that existing safe harbour warnings “lack the specificity necessary to ensure that the public receives useful information about potential exposures”.

The new regulations, says the agency, will “further the right-to-know purposes of the statute and provide more specificity for the content of safe harbour warnings for a variety of specific kinds of exposures, and corresponding methods for providing those warnings.”

The nearly 300-page FSOR addresses substantive comments submitted through the rulemaking process.

The new Prop 65 warning requirements take effect from 30 August 2018. In the meanwhile, businesses may either comply with the new provisions or with the law prior to its amendment.

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