Legalization of medicinal and adult-use cannabis in California has fomented a surge of seed-to-sale companies angling to lure market share from a sea of customers. The water may soon be agitated, however, by the Office of Environmental Health Hazard Assessment (OEHHA). OEHHA is the lead California agency that oversees implementation of Proposition 65, formally known as the Safe Drinking Water and Toxic Enforcement Act of 1986. OEHHA recently announced that it has selected cannabis (marijuana), marijuana (cannabis) smoke, cannabis extracts, and delta-9-Tetrahydrocannabinol (THC) for review for possible listing under Proposition 65 as chemicals that cause reproductive toxicity. If the Developmental and Reproductive Toxicant Identification Committee (DARTIC) determines that these chemicals cause reproductive toxicity based upon “scientifically valid testing according to generally accepted principles,” marijuana in its various forms will likely join a list of more than 900 chemicals known to the state to cause cancer, birth defects, or other reproductive harm. Companies that cultivate, distribute, and/or sell marijuana and products containing marijuana in California would then be required to warn consumers—and possibly employees and passersby—that exposure to these listed chemicals can cause reproductive harm.
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In August 2016, California’s Office of Environmental Health Hazard Assessment (OEHHA) adopted new regulations that replaced Prop 65’s “clear and reasonable” warning provisions. These new regulations, which allocate responsibility for providing warnings on consumer products sold in California and include new criteria for “safe harbor” warnings, become operative on August 30, 2018.
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Prop. 65 requires warnings be given to Californians prior to exposing them to even minute amounts of any of the 900+ chemicals listed as causing cancer or reproductive harm. The law has been on the books for 30 years. 2016 saw noteworthy amendments to the “safe harbor” warning provisions. These new regulations may be found in the California Code of Regulations (CCR) Title 27, Section 25600. These amendments alter the relationships between entities in the chain of commerce, particularly as between retailers and their vendors, but also place added burdens on all businesses that need to comply with Prop. 65. We expect the recent amendments to the Prop. 65 warning regulations to increase litigation and the numbers of claims filed by plaintiff lawyers. Understanding the regulations and the risks involved is vital in helping businesses reduce their potential liability.
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