The Office of Environmental Health Hazard Assessment (OEHHA) adopted amendments to the Clear and Reasonable Prop 65 regulations on November 20, 2017 to clarify certain provisions.
The changes relate to two mains topics:
The first is to clarify the definition of a Registered Agent for the purposes of providing notice of the Prop 65 requirements.
These changes were required as manufacturers and distributors needed clarification as to the definition of a Registered Agent for the purposes of allowing the transmittal of notice requirements to downstream transferees that is now permitted to transfer responsibility for warnings under the 2016 regulations.
The changes add language to the relevant provisions of the regulations that an authorized agent is the authorized agent for the business to which they are selling or transferring the product.
This clarifies that the upstream entities need only to give the notice to their immediate downstream customers, which has been a question for entities attempting to comply with the 2016 regulations:
(b) The manufacturer, producer, packager, importer, supplier, or distributor of a product may comply with this article either by providing a warning on the product label or labeling that satisfies Section 25249.6of the Act, or by providing a written notice directly to the authorized agent for the business to which they are selling or transferring the product or to the authorized agent for a retail seller who is subject to Section 25249.6 of the Act, which:
(1) States that the product may result in an exposure to one or more listed chemicals;
(2) Includes the exact name or description of the product or specific identifying information for the productsuch as a Universal Product Code or other identifying designation;
(3) Includes all necessary warning materials such as labels, labeling, shelf signs or tags, and warning language for products sold on the internet, that satisfies Section 25249.6 of the Act; and
(4) Has been sent to the authorized agent for the business to which they are selling or transferring the product who is subject to Section 25249.6 of the Act or to the authorized agent for the retail seller, and the manufacturer, producer, packager, importer, supplier, or distributor has obtained confirmation electronically or in writing of receipt of the notice.
(c) If the manufacturer, producer, packager, importer, supplier, or distributor of a product is complying with this section by providing a written notice directly to the authorized agent for the business to which they are selling or transferring the product who is subject to Section 25249.6 of the Act or to the authorized agent for the retail seller:
(1) Confirmation of receipt of the notice must be received electronically or in writing, and must be renewed, and receipt of the renewed notice confirmed electronically or in writing by the authorized agent for the business to which they are selling or transferring the product who is subject to Section 25249.6 of the Act or the authorized agent for the retail seller‘s authorized agent no later than February 28, 2019, then annually thereafter during the period in which the product is sold in California by the retail seller.
(2)Where a business has not designated an authorized agent, the manufacturer, producer, packager,importer, supplier, or distributor may serve the notice on the legal agent for service of process for the business.
(b) The manufacturer, producer, packager, importer, supplier, or distributor of a product may comply with this article either by providing a warning on the product label or labeling that satisfies Section 25249.6of the Act, or by providing a written notice directly to the authorized agent for the business to which they are selling or transferring the product or to the authorized agent for a retail seller who is subject to Section 25249.6 of the Act….
The second change relates to what “actual knowledge” means with respect to duties of the retailers under the Prop 65, 2016 Amendments to the Clear and Reasonable Warnings.
(f) For purposes of subsection (e)(5), “actual knowledge” means specific knowledge of the consumer product exposure with sufficient specificity for the retail seller to readily identify the product that requires a warning, and that is received by the authorized agent or a person whose knowledge can be imputed to the retail seller from any reliable source. If the source of this knowledge is a notice served pursuant to Section 25249.7(d)(1) of the Act, the retail seller shall not be deemed to have actual knowledge of any consumer product exposure that is alleged in the notice until five business days after the retail seller receives a notice that provides a description of the product with sufficient specificity for the retail seller to readily identify the product in accordance with
Article 9, section 25903(b)(2)(D).
The actual knowledge provision is in turn significant because it relates to the instances when a retailer becomes responsible for the warning.
(e) The retail seller is responsible for providing the warning required by Section 25249.6 of the Act for a consumer product exposure only when one or more of the following circumstances exist:
(5) The retail seller has actual knowledge of the potential consumer product exposure requiring the warning, and there is no manufacturer, producer, packager, importer, supplier, or distributor of the product who: (A) Is a “person in the course of doing business” under Section 25249.11(b) of the Act, and (B) Has designated an agent for service of process in California, or has a place of business in California.
OEHHA will receive comments by 5:00 p.m. on December 31, 2018. All comments will be posted on the OEHHA website at the close of the public comment period.
Craig A. Tristao is a Partner in the litigation and transactions departments of the firm’s Fresno office. He provides representation to clients in litigation matters involving agricultural law, environmental law, construction law, land use and natural resource law, water law, probate and estates, and eminent domain matters that involve the California High Speed Rail Authority. Craig also assists clients with regulatory compliance issues concerning the Clean Water Act (CWA), the Porter-Cologne Act, and the Clean Air Act (CAA). In addition to litigation, Craig also represents clients before the Regional Water Quality Control Boards and the State Water Resources Control Board, air districts, and the Contractors State License Board (CSLB). He has also been named a Super Lawyers “Rising Star” for 2015-2018 (2.5% of lawyers practicing under 10 years). You can contact Craig at (559) 248-4820 or ctristao@ch-law.com.