More than a month after updated warning requirements came into force for California’s Proposition 65, the regulated community is still grappling with the changes and a new wave of private enforcement litigation looms.
The law, which requires businesses to provide warnings to consumers exposed to any of more than 900 listed carcinogens and reproductive toxicants, was amended significantly in 2016.
After a two-year phase-in, the requirements for what constitutes a ‘clear and reasonable warning’ took effect on 30 August. But attorneys and the state agency that oversees the regulation, the Office of Environmental Health Hazard Assessment, said confusion remains.
Sam Delson, an Oehha spokesperson, said the agency continues to receive many calls and emails, although the volume has decreased significantly compared with the final weeks preceding full implementation.
Mr Delson said a "surprising number" of queries related to whether warning is required, or not, for a specific product – despite the fact that the new requirements did not change when this must be provided.
The agency also fields a high volume of questions involving warnings in languages other than English. Internet warnings, which must be provided by online retailers prior to a customer’s purchasing a product for which it is required, have also been the subject of many inquiries.
Kim Sim, an attorney with law firm Conkle, Kremer and Engel, told Chemical Watch the new regulations are "very confusing and very complex".
The requirement that manufacturers name at least one substance for which they are providing warning has proven particularly challenging. Determining which one to include "can be tricky for companies to decide", she said. "Is one more scary to the public than another?"
Javaneh Nekoomaram, an attorney with Keller and Heckman, said "most companies" are opting to use a truncated on-product warning that does not require the name of the listed chemical to be included.
But, she said, companies are unclear when this shorter warning can be used. There are also questions about where warnings should be placed or posted in order to be ‘clear and reasonable’, including in internet advertising and catalogues, she added.
Litigation threat lurks
While businesses get to grips with the new requirements, the threat of litigation looms.
A unique aspect to Prop 65 is that private persons or organisations can take legal action against alleged violators of the law, and are awarded 25% of penalties assessed. This has given rise to an active – and often lucrative – litigation scene.
Several attorneys told Chemical Watch that they do not expect an immediate uptick in ‘bounty hunter’ lawsuits as a result of the new requirements. This is because the amended on-product warning requirements only apply to those products manufactured after 30 August, and it may be difficult for a private individual to determine a product’s manufacture date.
But Ms Sim said she expects an upward trend in lawsuits as more private enforcers – and more law firms – enter the ‘cottage industry’ of Prop 65 enforcement: "Unfortunately because certain aspects are not clear, there will probably be increased enforcement activity for some time."
'Low hanging fruit'
Ms Nekoomaram said that the focus of litigation is likely to remain on exposures where no warning is given, but that California may start to see more claims that warnings are inadequate because they deviated from the updated regulations.
"The new safe harbour warning provisions are more particular than the prior standards and companies may miss one of the standard components," she said, such as the pictogram, font size requirements, foreign language requirements, including a URL linking to the Oehha-managed Prop 65 website, or naming a listed chemical. These omissions "may look like low hanging fruit to bounty hunters".
Ms Sim said that a safe harbour warning is exactly that – a form of providing warning that can provide an affirmative defense in a lawsuit. Companies, however, retain the ability to provide different warnings and, if faced with litigation, could argue that the alternative they provided was "clear and reasonable".
But "that’s a risk that most businesses aren’t willing to take," Ms Sim said.