WARNING: Everything in California May Cause Cancer
That is the likely conclusion if one were to believe every Proposition 65 warning they encounter. So ubiquitous are Prop 65 warnings that they seamlessly blend into the California landscape. From mall entrances to just about every conceivable consumer good, Californians are bombarded with Prop 65 warnings to the point that it is hard to know what is not known to the state of California to cause cancer or reproductive harm.
Clearly, we have an overwarning problem and the agency responsible for promulgating the regulations, the Office of Environmental Health Hazard Assessment (OEHHA), agrees. Unfortunately, their proposed regulatory changes will not likely reduce the number of warnings and will have negative unintended consequences to businesses.
Why?
Companies warn under Prop 65 because not doing so brings substantial liability, even if the exposure to a Prop 65-listed chemical is de minimis. Rarely does defending even a frivolous lawsuit make economic sense when settling with bounty hunters is often cheaper and speedier. Private enforcers alleging exposure to a Prop 65-listed chemical need only demonstrate the presence of the Prop 65-listed chemical. It is the business that carries the heavy burden of proving that the exposure is below the Safe Harbor Level, a highly technical and often difficult to prove analysis that rarely justifies the high cost. Since 2010, businesses have opted to settle over $185 million in Prop 65 lawsuits. Even during a global pandemic, Prop 65 enforcement attorneys have secured more than $1.1 million in fees just 30 days into 2021.
Shakedown lawsuits will inevitably continue, and companies will inevitably continue warning to reduce liability. OEHHA will not address the overwarning problem and restore meaning to Prop 65 warnings with their proposed changes to the short form warning requirements. It will simply result in companies spending millions more dollars to redo their warning labels, again.
Proposed Change to Safe Harbor Warning Requirements Will Raise Costs on California Businesses
OEHHA’s proposed changes to the Prop 65 warning requirements come just two years after companies spent millions of dollars overhauling their Prop 65 warning programs to comply with the August 30, 2018 enforcement deadline. At that time, OEHHA provided companies with two safe harbor warning options, including a shorter warning, if the company placed the Prop 65 warning label directly on the actual product (as opposed to the store shelf, as one example). Companies relied on and spent millions complying with the plain language of the regulations and the agency’s written feedback to the regulated community about sizing requirements, language and placement of the warnings.
Now, two years later, OEHHA justifies these proposed changes as a way to reduce the number of warnings in the marketplace. Unfortunately, these proposed regulations will do little to meaningfully address the Prop 65 overwarning problem because they incorrectly assume companies are overwarning because the agency provided a shorter Prop 65 warning label option. Changing Prop 65 warning label programs, again, will merely result in additional financial impacts and legal liability to businesses at a time when they can least afford it.