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23 October 2014
Earlier in 2014 California's Office of Environmental Health Hazard Assessment (OEHHA), which is charged with implementation of the state's controversial Proposition 65 law, released a pre-regulatory proposal to revise its longstanding regulations governing "clear and reasonable warnings". The proposal met with substantial opposition from a broad coalition of businesses and, as a result, OEHHA is expected to unveil a new slimmed-down version later this autumn. In the interim, to address other criticisms of its previous proposal, OEHHA recently requested that the public submit comments, by November 17 2014, on several other aspects of the regulations.
OEHHA's request focuses on key aspects of the few defences available in Proposition 65 cases:
In addition to requesting comment on the need for revisions to these aspects of the existing Proposition 65 regulations, OEHHA has requested public input on:
OEHHA will hear feedback on these issues from the public enforcement community, environmental groups and lawyers whose practices are devoted to bringing private Proposition 65 enforcement actions. It is therefore essential that OEHHA receive thoughtful, specific, well-supported feedback from the regulated community concerning the strengths and weaknesses of the current regulations and obtain businesses' suggestions on how they can be improved. If OEHHA revises the regulations, litigation over the outcome is likely; so to preserve their option to challenge any changes that make it harder for them to defend themselves, businesses will need to demonstrate that they made their case in the administrative record. Because statutory amendments of Proposition 65 are difficult, if not impossible, to obtain, this process may well determine the shape and impact of this much-feared law for many years to come.
For further information on this topic please contact Robert Falk, Michèle Corash or Michael Steel at Morrison & Foerster LLP by telephone (+1 415 268 7000), fax (+1 415 268 7522) or email (email@example.com, firstname.lastname@example.org or email@example.com). The Morrison & Foerster website can be accessed at www.mofo.com.
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Robert L Falk
Michèle B Corash
Michael Jacob Steel