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30-year-old Law Needs Significant Statutory Reforms

WASHINGTON (February 4, 2016) - In comments provided last week to California's Office of Environmental Health Hazard Assessment (OEHHA), the American Chemistry Council (ACC) strongly encouraged OEHHA to revise or abandon proposed changes to its warning label regulations under Proposition 65 , the Safe Drinking Water and Toxic Enforcement Act of 1986.

"Over the past two years, OEHHA has held multiple public comment periods to solicit feedback on two different proposals to change warning labels. The first was abandoned after receiving extensive public criticism. OEHHA then offered a new proposal which we believe will continue to create confusion and will fail to achieve the Agency's goal of improving the clarity or effectiveness of the warnings," said Mike Walls , ACC vice president of regulatory and technical affairs. "In fact, we believe the proposed changes will lead to more consumer confusion, more uncertainty for business, and more private enforcement actions. The only way to address the many problems with Proposition 65 is through significant statutory reforms to this 30-year-old law."

A key shortcoming of the current proposal is that consumer product warnings would include the name of at least one of the more than 900 chemicals on the Proposition 65 list. "At first glance this may seem reasonable, but in reality, this type of warning omits important information that consumers need to make product decisions," said Walls. "The statute wasn't designed to deliver risk information, and this regulatory 'fix' just won't get the job done."

Walls uses the example of a car to illustrate his point. "There are dozens of listed chemicals in a car. Under this proposal the manufacturer could 'pick one,' such as carbon monoxide (CO) for the warning label. But just listing the presence of CO on a label does nothing to help a consumer. The warning alone doesn't explain that CO is present only when the engine is on; that the risk of exposure is minimal under normal driving conditions; or that the risk of exposure is greater driving with a faulty engine or operating the vehicle in a confined space. And, to make matters worse, the current proposal actually prohibits manufacturers from providing consumers with meaningful risk information-such as why the CO is present, what function it delivers or that the product is safe. That's why ACC urges OEHHA to remove this single chemical provision," said Walls.

In past comments ACC encouraged OEHHA to conduct consumer research to test the effectiveness of proposed new "safe harbor" warning label language and graphics before adopting changes that will have a significant impact on product manufacturers, retailers and facilities. "While OEHHA did conduct what we believe is the first consumer research in the law's long history, an independent analysis of the study finds that it is irredeemably flawed and cannot be used to support the changes that OEHHA has proposed," stated Walls. "Rather than supporting a consumer's right-to-know, Proposition 65 continues to serve as a "right-to-confusion."

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Notes to Editor:

  1. ACC contracted with Evolving Strategies, LLC , to review the study conducted by the UC Davis Extension Collaboration Center on behalf of OEHHA, designed to determine "whether the existing or proposed warnings are more helpful as a clear warning of chemical exposure." The firm's research scientists concluded that the study methodology employed "fails, on many fronts, to demonstrate that the proposed changes would be more effective in advancing the intent of the law."  Specifically, the survey sample was unrepresentative of California's population and the instrument design and survey execution incorporated biased questions leading to "priming" of respondents' answers. Attachment A, ACC Comments Jan 25, 2016, Evolving Strategies Review

  2. Proposed Rulemaking and Announcement of Public Hearing Title 27, California Code of Regulations Proposed Repeal of Article 6 and Adoption of New Article 6-Clear and Reasonable Warnings

  3. ACC Comments on OEHHA Warning Reg 1-25-2016

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