OEHHA Announces Public Hearing on Proposed Changes to Safe-Harbor Warnings for Pesticide Products under Prop 65

On May 30, 2018, California's Office of Environmental Health Hazard Assessment (OEHHA) announced that it scheduled a public hearing to discuss its recently-proposed changes to Proposition 65 safe harbor on-product warning content for exposures to listed chemicals in pesticide products. The proposal adds a section to the safe harbor regulations to allow businesses to substitute, on pesticide product labels, the current required word "WARNING" with the word "ATTENTION" or "NOTICE" in capital letters and bold type. The hearing will take place on June 21, 2018, at 10:00 am at the California EPA headquarters in Sacramento. OEHHA also extended the public comment period on this proposed rule from June 11, 2018, to July 5, 2018.

Proposition 65 (Prop 65) requires businesses to provide "clear and reasonable" warnings to individuals in the state of California before knowingly and intentionally exposing them to a chemical "known to the state to cause cancer or reproductive toxicity."[1] Article 6 of Prop 65 includes "safe harbor" warning language for a variety of exposures that OEHHA deems "clear and reasonable" under the law. On August 30, 2016, OEHHA promulgated significant amendments to Article 6 that go into effect on August 30, 2018 (see KH alert). The amended Article 6 safe harbor warning language takes effect for all covered products manufactured on or after August 30, 2018. Covered products manufactured before August 30, 2018, will continue to be compliant using pre-amendment safe harbor language.

On April 23, 2018, OEHHA proposed an additional amendment to Article 6 in response to a request to modify safe harbor warning content for on-product warnings for exposures to listed chemicals in pesticides. OEHHA states that it is proposing this action to ensure compatibility with state pesticide regulations and because businesses are more likely to place warnings on the product label, making it easier for California residents to identify the source of exposure to the Prop 65-listed chemical.

The proposal adds subsection (d) to Section 25603 of the safe harbor regulations to allow businesses to substitute the current word "WARNING" with the word "ATTENTION" or "NOTICE" in capital letters and bold type for warnings on pesticide product labels. OEHHA explains that this proposal addresses an issue pesticide businesses preparing for the amendment's effective date have had - they cannot use the Prop 65-required word "WARNING" on their pesticide label because that would be an inconsistent and violative word to use under FIFRA. ("An alternative...word for these pesticides is necessary to allow businesses that manufacture pesticide products requiring 'Danger' or 'Caution' signal words [Toxicity Categories I, III, or IV under FIFRA] to provide a safe harbor warning directly on the product label if they choose to do so, without running afoul of the FIFRA or DPR labeling requirements.").[2]

If this proposal is finalized, businesses may experience difficulty changing their Prop 65 warnings on pesticide labels in time for the August 30, 2018 compliance date. Under FIFRA, U.S. EPA must evaluate and approve each pesticide label, including label amendments. EPA has indicated that it is not accepting amendments to Prop 65 language (based on this proposal) on master pesticide labels until the proposed rule is finalized by OEHHA, which could take months depending on the comments received, and potentially cut close to the August 30 deadline.

Companies that provide Prop 65 warnings on their pesticide labels are encouraged to review this proposal and comment.

OEHHA has published information about the proposed rule here: https://oehha.ca.gov/proposition-65/crnr/proposed-amendments-article-6-clear-and-reasonable-warnings-section-25603.

Stakeholders may submit written comments to OEHHA via email to P65Public.Comments@oehha.ca.gov or through OEHHA's website at https://oehha.ca.gov/comments.

[1] Cal. Health & Saf. Code § 25249.6.

[2] April 2018 Initial Statement of Reasons at p. 6.