Reed Smith Client Alerts

The California Office of Environmental Health Hazard Assessment (OEHHA) has revised the California Safe Drinking Water and Toxic Enforcement Act of 1986 (aka Proposition 65 or “Prop 65”) regulations by clarifying “midstream” chain-of-commerce parties’ responsibilities relating to the provision of warnings for approximately 900 chemicals in consumer products sold into California. The revised regulations become effective on April 1, 2020. Below is a summary of OEHHA’s amendments.


Prop 65 requires, among other things, that regulated companies provide clear and reasonable warnings to individuals prior to exposing them to consumer products sold into California. Warnings may be triggered by any of approximately 900 regulated chemicals known to the state to cause cancer or birth defects. This creates business risk for parties in the stream of commerce who may not know the constituents of products they are purchasing or the ultimate destination of the consumer products they are selling.

The amendments at issue are located in Title 27, Cal. Code of Regs., section 25600, et seq. Specifically, section 25600.2 (“Responsibility to Provide Consumer Product Exposure Warnings”). This regulation describes obligations of parties in the chain of commerce to provide warnings to downstream customers and ultimately to consumers. 

OEHHA determined clarification is needed because in some situations, the original manufacturer, distributor, importer, or others in the chain of commerce may not know where or by whom the product will ultimately be sold to a California consumer. The modifications clarify: a) that a business may comply with the warning requirement if it provides written notice of the warning requirement to the next business in line that is subject to Proposition 65; and b) that intermediate sellers may enter into a written, private agreement to provide the warning and notice in an alternative manner. The modifications also clarify the level of specificity required for a retailer to have “actual knowledge” of an exposure, and clarify the persons whose specific knowledge of a consumer product exposure can be imputed to the retail seller.