On October 4, 2019, California’s Office of Environmental Health Hazard Assessment (OEHHA) proposed modifications to amendments it proposed on November 16, 2018, to the Proposition 65 (Prop 65) regulations setting forth the circumstances when a “retail seller” is responsible for providing consumer product exposure warnings. As discussed below, OEHHA first proposed amendments clarifying retail seller responsibilities in response to questions and requests for clarification it received regarding these conditions. The new proposed revisions respond to these comments. OEHHA is accepting comments on the modifications until October 21, 2019.

Retail sellers are defined under the regulations (Cal. Code Regs. tit. 27, § 256001.1) as:

[A] person or business that sells or otherwise provides consumer products directly to consumers by any means, including via the internet. For purposes of this article, a retail seller includes those functions of a business involved in the sale of consumer products, including foods, directly to consumers, even if the business or facility is primarily devoted to non-retail activities.

OEHHA’s amended regulations set forth the specific circumstances under which a manufacturer, importer, supplier, or other entity that has primary responsibility for Prop 65 compliance can shift its burden to a retail seller. Information regarding the November 16, 2018, proposal is available here.

OEHHA’s initial November 16, 2018, amendments were intended in part to clarify that an “intermediate business” (i.e., not the manufacturer, producer, packager, importer, supplier, or distributor of the product) could satisfy Prop 65 obligations by providing a written notice and warning materials directly to the authorized agent for the business to which they are selling or transferring the product or to the authorized agent for the retail seller. The proposed amendments also seek to amend the definition of “actual knowledge” (Section 25600.2(f)) to clarify the level of specificity for “actual knowledge” such that the basis for “actual knowledge” of the retail seller must be of “sufficient specificity for the retail seller to readily identify the product” that requires a warning. Finally, OEHHA proposed to limit those persons whose specific knowledge of a consumer product exposure can be imputed to the retail seller.

Following a public comment period and a public hearing held on January 3, 2019, OEHHA is now proposing additional modifications to the regulations. Specifically, OEHHA is proposing to:

• Modify Section 25600.2(b) to clarify that compliance may be met so long as the business to which the authorized agent for a retail seller provides the written notice is subject to Section 25249.6 of Proposition 65.

• Modify Section 25600.2(b)(4) to provide that written notices to retail sellers must be renewed annually during the period in which the product is sold in California by a retail seller.

• Modify Section 25600.2(i) to clarify that entering into a written agreement is not limited to retail sellers, but that other intermediate parties -- businesses to which they are selling or transferring product -- may also enter into a written agreement.

• Modify the definition of “actual knowledge” to remove knowledge of “sufficient specificity” and instead define “actual knowledge” as when the retail seller “receives information from any reliable source that allows it to identify the specific product or products that cause the consumer product exposure.”

• Make consistent changes to Section 25600.2(b), (c), and (f).

Commentary

The additional modifications to the retail seller further clarify that the retail seller to whom responsibility for Prop 65 compliance can be shifted must itself be an entity subject to Prop 65 jurisdiction. More interesting is how “actual knowledge” is defined. Although there was general recognition that the definition for “actual knowledge” needed clarification, concerns were raised regarding OEHHA’s definition proposed in November 2018. OEHHA’s prior guidance (p. 55) regarding the scope of “actual knowledge” states that “a retail seller may acquire knowledge of an exposure that requires a warning through news media, its customers or a trade association.” If the sources stated in OEHHA’s guidance are the “reliable sources” from which actual knowledge can be derived, the revised definition may provide a more objective standard against which to determine when “actual knowledge” has occurred.

Additional information regarding OEHHA’s amended “clear and reasonable warnings” regulations that took effect on August 30, 2018, is available