On July 23, 2021, the California Office of Environmental Health Hazard Assessment (OEHHA) released a new rulemaking concerning safe harbor warnings under Prop 65 for consumer products containing the chemical glyphosate. Nearly all stakeholders (the business community, environmental organizations, labor groups, and health entities) opposed the rulemaking.
In its Initial Statement of Reasons (ISOR), OEHHA explains its rational for the rulemaking: “The standard Proposition 65 safe harbor warning language – which includes the phrase ‘known to cause cancer’ – is not the best fit for the situation.” Correspondingly, OEHHA proposes a warning that significantly departs from every other OEHHA safe harbor warning, all 19 in fact, because it is the first instance where a safe harbor warning does not unequivocally state the chemical is “known to state to cause” cancer and/or reproductive harm.
“Using this product can expose you to glyphosate. The International Agency for Research on Cancer classified glyphosate as probably carcinogenic to humans. Other authorities, including USEPA, have determined that glyphosate is unlikely to cause cancer, or that the evidence is inconclusive. A wide variety of factors affect your personal cancer risk, including the level and duration of exposure to the chemical. For more information, including ways to reduce your exposure, go to www.P65Warnings.ca.gov/glyphosate.”
By informing consumers that there is a controversy among scientific bodies about whether the chemical has been appropriately identified as “known to the state” to cause cancer, OEHHA for the first time effectively places an unreasonable onus on the consumer to review the science and come to their own conclusion as to whether glyphosate poses a risk to human health. Yet, the average consumer likely lacks the scientific expertise, time and resources to make such an evaluation. The safe harbor warning merely leaves the consumer confused about a chemical in which the U.S. Environmental Protection Agency has concluded is not likely to cause cancer. The proposed rulemaking undermines both the scientific enterprise and the legitimacy of safety warnings by turning the product label into a forum for deciding which scientific authority the consumer should believe.
Finally, the proposed rulemaking upends over 35 years of Proposition 65 precedent. Since its inception, OEHHA and the California Attorney General have insisted that a Proposition 65 warning does not satisfy the statutory mandate of a “clear and reasonable” warning unless it unequivocally communicates that the chemical is “known to the state to cause” cancer and/or birth defects or other reproductive harm. Further, the California Supreme Court in Dowhal v. SmithKline Beecham Consumer Healthcare (32 Cal. 4th 910, 918 (2004) held that the Prop 65 warning must communicate that the chemical is “‘known to the state of California cause [cancer]’, or words to that effect.” The proposed rulemaking violates this longstanding principle and does so without so much as an acknowledgment of OEHHA’s dramatic change in policy and reversal of its prior position.
OEHHA should withdraw the proposed rulemaking that nearly all stakeholders agree is misguided.