California Environmental Protection Agency Intends to List New Chemicals Under Proposition 65

August 2023

On June 16, 2023, the California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) issued a Notice of Intent to list three new chemicals under Proposition 65. The window for public comments closed on Monday, July 17, 2023, without any comments submitted. Under the rule-making process initiated by Labor Code section 6382(b)(1) and (d), the state must wait at least 45 days from the Notice of Intent before publishing the Notice of Listing, which means that OEHHA could publish an updated list at any time between the next few weeks and early spring of next year. By law, OEHHA must update the list at least once a year, and the agency released the most recent list on April 21, 2023.

What is Proposition 65?

California’s Proposition 65 (sections 25249.5 et seq. of the Health and Safety Code), officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986, is a law that requires businesses to provide warnings to consumers about exposures to harmful chemicals. The notices intend to assist consumers in making informed decisions about chemical exposure from products they use or places they visit. Proposition 65 affects many businesses, as it applies to all consumer products sold or distributed in California. The law requires California to publish a list of chemicals known to cause cancer, congenital disabilities, or other harm. Since its initial publication in 1987, the register has grown to include over 900 chemicals.

Which chemicals are in the latest Notice?

The OEHHA has proposed adding Anthracene, 2-bromopropane, and Dimethyl hydrogen phosphite. Anthracene is found in dyes, plastics, and pesticides, while 2-bromopropane makes other chemicals, drugs, and dyes. Dimethyl hydrogen phosphite’s uses include fire-resistant textiles, lubricant additives, and corrosion inhibitors. The International Agency for Research on Cancer (IARC) recently identified the three substances as potential carcinogens in its latest evaluation meeting on March 23, 2023.

How does Proposition 65 affect businesses in California?

To comply with Proposition 65, businesses must provide consumers with an appropriate warning unless they can ensure exposure to any listed substance falls below an acceptable level. Proposition 65 also enables private parties to sue “in the public interest” to enforce the law, provided they issue a pre-suit notice (commonly called a “60-Day Notice”) at least 60 days in advance. The 60-Day Notice ensures businesses are aware of their legal obligations and allows them to correct violations before a lawsuit. The private suit provision in Proposition 65 has spurred considerable and steadily increasing litigation. In the past few years, 60-Day Notices have surged, particularly in the food and beverage industries. Staying informed of the latest changes to listed chemicals is crucial to ensuring compliance with Proposition 65.

A business found in violation of Proposition 65 faces court orders and significant fines. Since the law provides civil penalties of up to $2,500 per day per violation, the potential overall exposure for a non-compliant business can be excessive.

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