SAFEGUARDS | Consumer Products NO. 001/16

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On 24th November 2015, the California Office of Environmental Health Hazard Assessment (OEHHA) issued a withdrawal notice to repeal its previously proposed rulemaking which was published in January 2015. A new proposed regulation for Article 6 on "Clear and Reasonable Warnings" under Proposition 65 (Prop 65) dated 27th November 2015 was released and will replace the previous version of the proposed amendments. A public meeting on the new proposed changes will be held on 13th January 2016, and written comments submitted to OEHHA must be received by 22nd January 2016.

California’s Proposition 65 requires OEHHA to publish a list of chemicals known to the State to cause cancer or birth defects or reproductive harm. The law requires businesses offering products or services in California that would expose a person to a listed chemical above a safe level to provide a “clear and reasonable” warning prior to such exposure. OEHHA’s current Prop 65 regulations identify “safe harbor” levels of exposure for some of the chemicals listed that businesses can rely upon to comply with the statute.

Highlights of key changes in the new proposal:

  • Eliminates the list of 12 chemicals which were proposed to be required to be disclosed if above the applicable threshold. Instead, the new proposal requires the warning to include the name of “one or more” of the listed chemicals for which the warning is being provided.
  • Manufacturers that are providing Prop 65 warnings physically on the product label are exempt from the chemical specific labeling requirements.
  • Retains the two year transition period after the date of adoption. Any warnings for a product manufactured prior to adoption are protected indefinitely so long as their warnings comply with the September 2008 warning regulations.
  • Clarifies that parties to court-ordered settlements or final judgments are deemed to have provided “clear and reasonable” warnings if their warnings fully comply with the order or judgment.
  • Limits the prohibition against supplemental information that contradicts the warning and confirms that supplemental information may not be substituted for the warning.
  • Retains the goal of minimizing the burden on retail sellers and clarifies the allocation of responsibility between upstream entities and retail sellers.
  • Adds requirement for the manufacturer, producer, packager, importer or distributor of a product to notify the retail seller with an additional notice within 90 days if a new chemical name or endpoint (i.e. cancer or reproductive toxicity) is required to be included in the warning on a product.
  • Allows the manufacturer, producer, packager, importer or distributor of a product to enter into an agreement with the retail seller that allocates legal responsibility for the warning among them in a way that is different from how responsibility is allocated by the regulation.

Additionally, the revised proposal includes mandatory use of languages other than English, the requirement for the yellow triangle exclamation point pictogram, as well as font size requirements.

Along with the withdrawal of the January 2015 proposal and the following issuance of the November 2015 proposed amendments, industry and other concerned parties are invited to make public comments and provide inputs to OEHHA on the new proposal until 22nd January 2016 and a public meeting will be scheduled on 13th January 2016.

For more information, please read the full text of the new draft regulations which published by OEHHA.

Throughout a global network of laboratories, SGS can offer comprehensive testing, product assessments and consultancy services related to California Proposition 65 to assist your risk management in your supply chain for consumer goods such as DIYs, electrical and electronics, hardgoods products, juvenile products, and textile & toy products. For further information, please visit our website.

For enquiries, please contact:

Louann Spirito
Director Technical Support, Softlines
t: +1 973 461 7919

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