Proposition 65
Regulatory Update Project
Warnings for Exposures to Listed Chemicals in Foods
ANNOUNCEMENT OF WORKSHOP AND
PUBLIC COMMENT PERIOD
[11/19/08]
Introduction/Background:
The Office of Environmental Health Hazard Assessment (OEHHA) is in the process of updating and improving the regulations that implement and interpret Proposition 65. As part of that effort, OEHHA formed a stakeholder work group to provide input concerning a possible regulation to provide guidance for food retailers on how to provide warnings for exposures to listed chemicals in foods.
The workgroup consists of 15 representatives of various stakeholder groups including food manufacturers, food retailers, consumer organizations, agriculture, environmental, enforcement and other state agencies. The stakeholder workgroup met four times between June and September 2008. Based on the input received from the workgroup, OEHHA has developed a framework for a potential “safe harbor” regulation for exposures to listed chemicals in foods sold at the retail level. This document represents OEHHA’s current thinking concerning a possible regulation and not necessarily the unanimous opinions of the workgroup.
Certain “operating principles” have guided this effort: 1) Manufacturers and retailers need clear guidance on how to provide a warning for food and 2) Consumers need to receive clear information in order to make informed choices.
Why a Special Regulation for Food Retailers?
Food is different. We are considering developing a special regulation for food retailers because:
- Food purchases tend to be repetitious in that consumers commonly purchase the same types of food over and over and generally from the same retail location;
- Most foods provide health benefits to consumers so a more nuanced approach may be needed to ensure that consumers do not avoid healthy foods;
- Most retail grocers carry hundreds or thousands of items purchased from multiple manufacturers or suppliers so the logistics of providing warnings can be complicated;
- The statute and regulations treat foods differently from other consumer items;
- The question of how to provide warnings for exposures to listed chemicals in food has been an issue since the Proposition passed in 1986;
- Lawsuits over the failure to warn about exposures to listed chemicals in foods have increased in the last several years; and
- Clarification in the regulations is needed in order to establish the basic division of responsibility for providing warnings between food manufacturers and food retailers.
What might a regulation look like?
OEHHA has put together an outline of the basic components of a regulation that would address the main areas where guidance is needed. While work still needs to be done to develop actual regulatory language, we felt it would be important to provide the public with an opportunity to comment on the concepts we have developed so far. We encourage any comments or suggestions that will improve this proposal.
The following is a general outline of the key elements that could be included in a regulation setting out a safe harbor process for providing warning for exposures to listed chemicals in foods sold at the retail level.
POSSIBLE CONCEPTS FOR KEY ELEMENTS OF A SAFE HARBOR WARNING PROGRAM FOR EXPOSURES TO LISTED CHEMICALS IN FOODS SOLD AT THE RETAIL LEVEL
(Note: If adopted, regulations would be added to the existing “safe harbor” warning regulations found in Title 27, Code of Regs., section 25601. Warnings can still be provided via any other “safe harbor” method or any other method that provides a clear and reasonable warning.)
I. CLARIFY FOOD RETAILER AND MANUFACTURER RESPONSIBILITY FOR PROVIDING WARNING MATERIALS TO CONSUMERS
Concepts being considered:
- Provide a program whereby food manufacturers could provide all necessary warning messages and materials to retailers via a central “clearinghouse.”
- Provide that manufacturers/retailers can “opt-in” to the safe harbor program.
- Provide conditional protection from liability for food manufacturers and retailers who provide warnings via these “safe harbor” methods.
- Manufacturers would have the primary responsibility for identifying products needing a warning, for the content of the warning messages, and for providing warning materials via the clearinghouse.
- Retailers would serve as the conduits for the warning information.
II. ESTABLISH SPECIFIC SAFE HARBOR METHODS FOR PROVIDING WARNINGS FOR FOOD PRODUCT EXPOSURES SOLD BY RETAILERS
Concepts being considered:
- Providing the required warning via one or more of the following methods:
- Pamphlet made available to customers at the point of sale;
- Printing a warning on the cash register receipt each time a product requiring a warning is purchased;
- A three part process using
- a general warning sign,
- A "trigger" to allow consumers to identify specific products requiring a warning, and
- Additional information provided in the store through one or more of the following:
- Information binders indexed by product category
- Electronic information available via scanners or similar device
- Product specific handouts made available at customer service, check-outs or other easily accessible location within the store
- Other similar method; or
- On-product warning label, shelf signs or other existing methods
III. SPECIFYING WARNING MESSAGE CONTENT
Concepts being considered:
- OEHHA develops approved content for general warnings and required elements for specific warning messages
- Using OEHHA guidance, manufacturers propose warning content and request approval from OEHHA
- Minor infractions that are quickly remedied can be corrected without retroactive liability
The above outline consists of general concepts for the regulations that will require additional work to develop detailed regulatory provisions and it is likely that additional regulatory provisions will be needed as the process develops.
NEXT STEPS:
OEHHA has scheduled a public workshop on December 3, 2008 to discuss the concepts outlined above. The workshop will be held at the Cal/EPA Headquarters Building from 10 am to 12 pm in the Sierra Hearing Room. The previous announcement notice is available for download at http://www.oehha.ca.gov/prop65/public_meetings/regupdate2_110308.html.
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The public is encouraged to ask questions, comment and give suggestions for alternatives or changes to this outline.
- All comments received at the workshop or in writing by January 16, 2009 will be considered as the concepts are developed further and potential regulatory language is drafted. NOTE: The comment period has been extended from the previously announced deadline of December 17, 2008.
- After consideration of the comments, OEHHA will schedule another public workshop to discuss draft regulatory language for a potential regulation.
- All comments received at that second workshop or in writing will be considered as the regulatory language is re-drafted and a formal regulatory proposal is developed.
- OEHHA expects to initiate a formal regulatory process by June 2009.
Questions or Comments?
Please attend the upcoming workshop or send written comments by January 16, 2009 to:
Carol J. Monahan-Cummings
OEHHA Chief Counsel
1001 I Street, MS 25B
Sacramento, CA 95814
Or via e-mail to cmcummings@oehha.ca.gov
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