California adopts Prop 65 lead agency website regulation.

• The California Safe Drinking Water and Toxic Enforcement Act of 1986 – also known as “Proposition 65” or “Prop 65” – requires the Governor of California to publish a list of chemicals known to the State to cause cancer or reproductive toxicity.  The list is updated by the Office of Environmental Health Hazard Assessment (OEHHA) of the California Environmental Protection Agency at least once per year.  Under Prop 65, entities may not knowingly discharge or release listed chemicals into drinking water, and entities also must provide a “clear and reasonable warning” before exposing individuals to significant amounts of listed chemicals.  Many food and beverage companies are familiar with the Prop 65 warning requirement and the potential for lawsuits where exposures are detected in the absence of appropriate warning statements.

• OEHHA is in the process of revisiting its Prop 65 regulations, which ultimately may include changes to the warning requirement itself. Earlier this month, California adopted a new regulation to establish a framework for a new OEHHA website that will provide supplemental information to the public about warnings they receive for exposures to Prop 65 listed chemicals. The new regulation will be effective on April 1, 2016. Under the new regulation, OEHHA may request that a manufacturer, producer, distributor, or importer of a product bearing a Prop 65 warning provide the Agency with supplemental  information about the listed chemical(s), including the name, location, and concentration of the chemical(s), as well as anticipated routes and levels of exposure. Although the data submission requirements are an additional burden for the industry, it is not clear how often OEHHA will request supplemental information from companies. The new regulation does not require companies to perform additional testing to generate data. Rather, a party must provide information that is already reasonably available. Significantly, requests may be answered through a trade association if OEHHA seeks information from two or more businesses regarding the same product or exposure.

• Many industry trade associations and companies have opposed development of the new website, arguing that the Agency lacked the statutory authority to require companies to provide the additional information sought.  Although OEHHA added certain clarifying language and concessions during the development of the regulation — including certain protections for trade secrets and a process for correcting information that appears on the website — the full impact of implementation and the ultimate value of the new website to consumers remains to be seen.