July 14, 2020

Volume X, Number 196

July 14, 2020

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July 13, 2020

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OEHHA Adopts Amendments to Prop 65 Retail Seller Responsibilities

On January 14, 2020, California’s Office of Environmental Health Hazard Assessment (OEHHA) adopted amendments it proposed on November 16, 2018, and modified on October 4, 2019, to the Proposition 65 (Prop 65) regulations setting forth the circumstances when a “retail seller” is responsible for providing consumer product exposure warnings. The amendments are effective on April 1, 2020.

The amendments adopted have not changed since OEHHA’s October 4, 2019, modifications. A discussion of these changes can be found here. Information regarding the initial November 16, 2018, proposal is available here.

These amendments were first proposed to clarify retail seller responsibilities in response to questions and requests for clarification it received regarding these conditions. Specifically, the amendments are intended to clarify the specific circumstances under which a manufacturer, importer, supplier, or other entity that has primary responsibility for Prop 65 compliance can shift its burden to a retail seller.

Retail sellers are defined under the regulations (Cal. Code Regs. tit. 27, § 25600.1) as:

[A] person or business that sells or otherwise provides consumer products directly to consumers by any means, including via the internet. For purposes of this article, a retail seller includes those functions of a business involved in the sale of consumer products, including foods, directly to consumers, even if the business or facility is primarily devoted to non-retail activities.

In its Final Statement of Reasons, OEHHA states (page 5) that “the proposed amendments do not limit producers’ responsibility to provide warnings but rather clarify how intermediate parties in the chain of distribution can satisfy their obligation to provide a warning under the Act.” With these amendments, intermediate parties will be discharged of their Prop 65 responsibility once they pass on the notice and warning requirements from the party with primary Prop 65 responsibility to the retail seller and obtain confirmation of receipt of such notice. The regulations also clarify that retail sellers with “actual knowledge” of Prop 65 consumer product warning requirements -- meaning receipt of information from any reliable source that allows it to identify the specific product or products that cause consumer product exposure -- also are responsible for providing warnings as set forth in the regulations.

Commentary

In that these amendments impact all parties in a supply chain selling consumer products into California with Prop 65 warning requirements, care should be taken by stakeholders to review them. OEHHA’s goal is to clarify that while the manufacturer or similar entity can have primary responsibility for Prop 65 compliance, intermediate parties within that value chain and ultimate retail sellers also can have responsibilities with regard to warning requirements. As OEHHA states: “if a warning is not given to the end consumer, enforcement action can be taken against those businesses that were given the Notice and subsequently failed to pass it along either to their customers or the end consumer.” FSOR at 5. OEHHA further states: “It is not unreasonable or contrary to the statute for an enforcement action to be filed against the manufacturer or other upstream entity that knowingly and intentionally causes an unwarned exposure because those entities are in a better position to know when a warning is needed.” FSOR at 16.

Additional information regarding OEHHA’s amended “clear and reasonable warnings” regulations that took effect on August 30, 2018, is available on our website under Prop 65 Regulatory Developments.

©2020 Bergeson & Campbell, P.C.National Law Review, Volume X, Number 17

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