Proposition 65 Update

California's Office of Environmental Health and Hazard Assessment (“OEHHA”), continues to work on changes to the warning requirements found in Prop 65.  The warning website, part of a regulatory reform package, was released in January 2015.  Also proposed were modifications of the content of the warnings required pursuant to Proposition 65 (“Article 6”).  Initially, OEHHA projected that the two amendments would be finalized by the close of summer 2015.  However, given the hindrances posed by the rulemaking process, this timeline has been significantly delayed.  At the Proposition 65 Conference held this fall in San Francisco, OEHHA representatives speculated that the regulations would not be finalized until December 2015, at the earliest.  The date on which the website regulation will go into effect is determined by the date on which it is filed with the California Secretary of State.  If it is filed on or before November 30, industry will have to comply with the regulatory requirements by January 1, 2016. As a result of comments received, several major clarifications have been issued.  One major point made by OEHHA is the designation of a 90-day time period that industry is afforded to respond to a request for information.  And, if the information provided by industry in response to an OEHHA request is to be disclosed pursuant to a California Public Records Act request, industry will now be given 30 days’ notice of such a disclosure, and as much time to object to it, if the request seeks information considered to be trade secrets.  Most significantly, OEHHA has reduced ambiguity regarding protections afforded information submitted to it, changing the regulatory language from “Confidential Business Information” to “Trade Secrets,” and by explicitly stating that a business is not required to provide information that is subject to legal privileges under California law.  Concerns still remain that the proposed website will prompt even more private enforcement actions. 
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