California’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed amending regulations governing how businesses provide “clear and reasonable” warnings under Proposition 65. The proposed amendments come in response to a number of requests for clarification from intermediate parties in the chain of commerce about how the responsibility for providing warnings is allocated between retailers and upstream entities.
Allocation of Responsibility to Provide Warnings
Proposition 65 places primary responsibility for providing consumer product exposure warnings on product manufacturers, producers, packagers, importers, suppliers, and distributors. To satisfy their duty to warn, businesses in these categories must either provide a warning on the product label or provide a written notice and warning materials to the authorized retail seller and receive a written or electronic acknowledgement that the notice and materials were received. Cal. Code. Regs. tit. 27, art. 6 § 25600.2(b)-(c).
OEHHA’s modifications would amend these provisions to clarify that intermediate businesses in the chain of commerce may satisfy their obligation to provide a warning by providing notice, either to the business to which they are selling or transferring the product, or to the retail seller. Also, the annual notice that a Proposition 65 warning is required would only need to be sent to either the business to whom the product is sold or to the retailer. These amendments are intended to address situations where the original manufacturer, distributor, or importer may not know where or by whom the product will ultimately be sold to a consumer.
What Constitutes “Actual Knowledge”
Under Proposition 65, a retailer is responsible for providing a warning only when the retailer has “actual knowledge” of a potential exposure, and there is no manufacturer, producer, or distributor who is subject to Proposition 65. Cal. Code. Regs. tit. 27, art. 6 § 25600.2(f). OEHHA has proposed clarifying the definition of “actual knowledge” to state that the basis for alleging a retail seller has actual knowledge must be of “sufficient specificity for the retail seller to readily identify the product that requires a warning.”
OEHHA’s modifications would also clarify whose specific knowledge of an exposure may be imputed to the retail seller. Currently, the regulations could be interpreted to mean that a retail seller has actual knowledge if any employee in the organization has information, including lower-level employees who could not be reasonably expected to evaluate the information and take action on behalf of the retail seller. OEHHA’s proposed modification provides that actual knowledge requires specific knowledge of the exposure to be received by an authorized agent or an employee in a position of sufficient responsibility that his or her knowledge can be imputed to the retail seller.