Safe Drinking Water and Toxic Enforcement Act

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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.

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.