California’s Office of Environmental Health Hazard Assessment (OEHHA) is proposing changes to the short form warnings currently allowed by Proposition 65. Known formally as the Safe Drinking Water and Toxic Enforcement Act of 1986, Proposition 65 requires businesses to provide clear and reasonable warnings about significant exposures to chemicals that cause cancer, birth defects, or other reproductive harm.
In what can be seen as an attempt to increase public knowledge about these chemical exposures, OEHHA’s proposed changes might invoke a different kind of impact, particularly on the legal landscape, raising the cost of doing business in California. This proposal may be seen as opening increased opportunities for litigation, which is why businesses and legal professionals alike should be paying close attention to these developments.
The warning labels, up to this point, have allowed businesses to simply state that a product can expose individuals to chemicals known to cause cancer or other harm, without specifying which particular chemicals are involved. This obscurity is something the proposed changes are aiming to eradicate. By requesting that specific chemicals be identified on labels, OEHHA is hoping to provide the public with more detailed information about the hazards they might be exposed to.
However, such a change would create an imperative for businesses to alter their warning labels. This change brings with it not just an administrative burden, but the real possibility of increased litigation. Many fear this can create an avenue for those looking to exploit the vagueness of these laws for manifestly opportunistic lawsuits. The costs of meeting these new requirements, combined with the inherent risk of infractions and subsequent lawsuits, set a high bar for companies operating within California.
While the intentions behind Proposition 65 and these proposed changes are commendable, the practical implications may prove costly for businesses. The proposed changes are currently under review, and public comments were solicited until March 29, 2021.
Legal professionals advising companies with operations in California should take note of these impending changes and prepare appropriate risk management strategies.
For further details on this topic, you can review the full discussion here.