CalChamber Aims to Reduce Unneeded Prop. 65 Warnings

 

The California Chamber of Commerce and a large coalition of small businesses, trade associations and local chambers are supporting a bill that promotes using a scientific exposure assessment when deciding whether to warn under Proposition 65. The bill, AB 543 (Quirk; D-Hayward), provides businesses with greater confidence in the utility of conducting scientific exposure assessments by stating that a business does not "knowingly and intentionally" expose individuals to Proposition 65-listed chemicals and thus need not provide a warning if the exposure assessment meets certain requirements.

Proposition 65 requires California businesses with 10 or more employees to provide a clear and reasonable warning before "knowingly and intentionally" exposing individuals to chemicals known to cause cancer and/or reproductive toxicity. Businesses may use a Proposition 65-listed chemical without providing a warning so long as the exposure does not exceed a specified threshold level.

Notwithstanding this so-called "safe harbor" from the warning requirement, businesses often provide warnings on their products or facilities out of an abundance of caution, even if no chemical exposure is present or if the chemical exposure is occurring below specified threshold levels.

This is because if a business rightfully and lawfully elects not to warn on the basis that its scientific exposure assessment concludes that the exposure does not exceed the threshold level, its risk of being sued is actually greater than if it provides a warning unnecessarily.

This unfortunate reality has resulted in what is often referred to as the "overwarning" problem, where California consumers are warned about chemical exposures that either don’t exist or are occurring at infinitesimal levels. The government, nongovernmental organizations and the business community have acknowledged that overwarning is a problem.

Even the California Supreme Court has noted that "the problems of overwarning are exacerbated if warnings must be given even as to very remote risks." Dowhal v. SmithKline Beecham Consumer Healthcare, 32 Cal.4th 910, 932-35 (2004), quoting Carlin v. Superior Court, 13 Cal.4th 1104, 1115 (1997).

AB 543 is a modest improvement that encourages the use of a scientific exposure assessment by providing that a business does not "knowingly and intentionally" expose individuals to Proposition 65-listed chemicals and thus need not provide a warning if the exposure assessment:

• is documented in writing and prepared by or under the supervision of a qualified scientist;
• is conducted in accordance with existing regulations; and
• concludes that the business is not exposing an individual to a Proposition 65-listed chemical at a level requiring a warning.

By clarifying the circumstances in which a business would not be deemed to have the requisite knowledge and intent necessary to support an alleged violation, AB 543 will create an incentive—where none currently exists—for a business to use science as the predicate for a decision to warn or not.

Accordingly, AB 543 will provide businesses with greater confidence in the utility of conducting scientific exposure assessments and, in doing so, will restore meaning to warnings that the law actually requires to advise consumers about chemical exposures exceeding Proposition 65 warning levels.

AB 543 was recently introduced; the soonest it can be considered by a legislative policy committee is March 26.