The proposal had contemplated clarifications to when short-form warnings should be used and had aimed to introduce new requirements for information about harmful chemicals.
By Michael Romey, Christopher Martinez, and Lucas Quass
Several amendments that the California Office of Environmental Health Hazard Assessment (OEHHA) had proposed to rules on short-form product warnings failed to move forward because OEHHA was unable to advance the rulemaking process within the legally allotted period.
The proposal, which aims to clarify when short-form warnings should be used, would also create new requirements for information about harmful chemicals.
By Michael G. Romey, Lucas I. Quass, and Kevin Homrighausen
This article has been updated to reflect OEHHA’s decision to extend the public comment period on the Proposed Amendments from January 14, 2022 to January 21, 2022.
On December 13, 2021, the California Office of Environmental Health Hazard Assessment (OEHHA) published a notice of modified text to its proposed short-form warning regulations of California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65 or Prop 65). As Latham previously reported, OEHHA had initially proposed amendments to its short-form warning regulations on January 8, 2021, which initiated a public comment period that ran through March 29, 2021. The December 13, 2021 proposed regulatory text (Proposed Amendments) respond to public comments received during the public comment period. A new public comment period for the Proposed Amendments will run from December 17, 2021 to January 21, 2022.
The new amendments seek to clarify the division of responsibility for providing warnings among upstream entities, intermediaries, and retailers.
By: Michael G. Romey, Lucas I. Quass, and Kevin A. Homrighausen
On April 1, 2020, new amendments to the implementation regulations of California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop 65 Regulations) will go into effect, addressing the responsibility to provide warnings within the chain of commerce for products containing chemicals listed by the state as potentially causing cancer and/or reproductive harm. Specifically, the amendments to the Prop 65 Regulations serve to clarify when retail sellers are responsible for providing Prop 65 warnings.
The prospect of facing bicoastal enforcement in two of the largest markets in the US could prove burdensome to businesses.
By Kegan A. Brown, Michael G. Romey, James A. Erselius, and Lucas I. Quass
On January 21, 2019, New York Governor Andrew M. Cuomo announced a proposal for the Consumer Right to Know Act — legislation that would authorize the Department of Environmental Conservation, in consultation with the Department of Health and the Department of State, to develop regulations establishing on-package labeling requirements for designated products indicating the presence of potentially hazardous chemicals, including carcinogens. If passed, the law would parallel California’s Proposition 65, which was enacted in 1986. Regulations updating Proposition 65 went into effect on August 30, 2018, which Latham & Watkins has summarized in previous blog posts.
Online alcohol sellers should ensure compliance with the new Prop 65 warning label requirements.
By Michael G. Romey, Lucas I. Quass, and James A. Erselius
On August 30, 2018, new regulations governing the implementation of California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop 65) went into effect. The new regulations apply to all products manufactured after that date and require updated warnings that must appear on product labels in addition to other substantive changes. For an overview of the amendments, please refer to Latham’s four-part “How To Prepare” blog series. One provision of the recent amendments, concerning the warning requirements for the sale of alcoholic beverages, has triggered a notices of violation. In the first quarter of 2019, more than 50 notices alleging failure to comply with Prop 65 have been sent to online retailers of alcoholic beverages.
Companies may need to carefully consider practical business concerns to comply with the updated Prop 65 regulations, effective August 30.
By Michael G. Romey, Lucas I. Quass, and James A. Erselius
New regulations governing the implementation of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop 65) will go into effect on August 30, 2018 that apply to products manufactured after the operative date of August 30, 2018. The new regulations update the content of the Prop 65 warning label that appears on products, in addition to other substantive changes.
Below is one example of how the new warning may look; however, the exact content will depend on the specifics of the exposure in question.
Upcoming regulation will change substantive components of Prop 65 warnings. 
By Michael G. Romey and Lucas I. Quass
As discussed in Part 1 of Latham’s previous posts, California’s Office of Environmental Health Hazard Assessment (OEHHA) will modify how the department implements the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65 (Prop 65) on August 30, 2018. In 2016, OEHHA published new regulations (the 2016 Regulations) for Prop 65 enforcement that will increase businesses’ responsibility to provide a “clear and reasonable” warning to consumers for products that contain carcinogens and/or reproductive toxins. OEHHA intended for the updated clear and reasonable requirements to improve access to information for California consumers considering purchasing products containing certain chemicals that the State designates as causing cancer or reproductive harm. As discussed in Part 2 of this series, the 2016 Regulations explain which businesses in the supply chain are responsible for each part of the Prop 65 warning process.
The 2016 Regulations require different warning content than earlier Prop 65 regulations, and also provide new “safe harbor language” which, if followed, are by regulation clear and reasonable. Cal. Code. Regs. tit. 27, § 25603(a). Distributors, suppliers, manufacturers, producers, packagers, and importers (Upstream Entities) will be responsible for developing warning content that complies with the 2016 Regulations before they become effective on August 30th. This blog post will discuss the new safe harbor content provided by the 2016 Regulations. The post is part of a continuing series on Prop 65 compliance issues for entities within the California chain of commerce to consider, as the new regulations become effective on August 30, 2018. The 2016 Regulations are only applicable to products manufactured on or after August 30th.
Upstream entities will need to shoulder more responsibility in the warning process after August 30th.
By Michael G. Romey and Lucas I. Quass
As discussed in Latham’s previous post, August 30, 2018 will mark a significant change in the enforcement of the Safe Drinking Water and Toxic Enforcement Act of 1986, also known as Proposition 65 (Prop 65). California’s Office of Environmental Health Hazard Assessment (OEHHA), which is responsible for the implementation of Prop 65, published new regulations in 2016 (2016 Regulations) that will adjust how businesses provide what OEHHA deems “clear and reasonable” warnings to consumers about products that may result in an exposure to a chemical listed by the State as potentially causing cancer and/or reproductive harm. Among other obligations, the 2016 Regulations will require businesses to provide consumers with more information about chemicals listed under Prop 65 in consumer products, whether bought online or in person. The 2016 Regulations also explain which entities in the chain of commerce are primarily responsible for compliance with particular Prop 65 requirements.
Specifically, the 2016 Regulations impose more responsibility on upstream entities, such as manufacturers, distributors, packagers, importers, producers, and suppliers (Upstream Entities), shifting the primary burden away from retailers. See CAL. CODE REGS. tit. 27, § 25600.2(a) (2016). This increase in responsibility is based on OEHHA’s understanding that Upstream Entities possess superior knowledge about which chemicals are involved in producing consumer products. The 2016 Regulations also provide retailers with the opportunity to secure legal indemnity via written agreement with Upstream Entities. Id. § 25600.2(i).
This blog post is part of a continuing series on Prop 65 compliance issues aimed at entities within the California chain of commerce, as the 2016 Regulations become effective on August 30, 2018. The 2016 Regulations are applicable to products manufactured on or after August 30, 2018.
Upcoming regulation will require online and catalog retailers to implement product warnings.
By: Michael G. Romey and Lucas I. Quass
Enforcement of the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65 (Prop 65), will change significantly on August 30, 2018. Two years earlier, on August 30, 2016, California’s Office of Environmental Health Hazard Assessment (OEHHA), the agency responsible for implementing Prop 65, issued regulations that increased businesses’ responsibility to provide a “clear and reasonable” warning to consumers for products that contain carcinogens and/or reproductive toxicants. Among other requirements, under these new regulations (2016 Regulations) businesses must provide consumers in California with more specific information about potentially harmful chemicals in their consumer products. The 2016 Regulations also specify which entities in the stream of commerce are responsible for providing the Prop 65 warnings and the information that goes into the warnings.
Specifically, the 2016 Regulations will impact online retailers and upstream entities such as product manufacturers, suppliers, and distributers, who under the 2016 Regulations are primarily responsible for Prop 65 warning labels. See CAL. CODE. REGS. tit. 27, § 25600.2(a) (2016).
This blog post is the first in a series to consider several issues as the 2016 Regulations become effective on August 30, 2018. These regulations are only applicable to products manufactured on or after August 30, 2018. If you have further questions about the implementation of the 2016 Regulations, please contact one of the authors or the Latham lawyer with whom you usually consult.