The changes relate to two mains topics:
The first
is to clarify the definition of a Registered Agent for the purposes of providing notice of the Prop 65 requirements. These changes were required as manufacturers and distributors needed clarification as to the definition of a Registered Agent for the purposes of allowing the transmittal of notice requirements to downstream transferees that is now permitted to transfer responsibility for warnings under the 2016 regulations.
The changes add language to the relevant provisions of the regulations that an authorized agent is the authorized agent for the business to which they are selling or transferring the product.
This clarifies that the upstream entities need only to give the notice to their immediate downstream customers, which has been a question for entities attempting to comply with the 2016 regulations:
(b)
The manufacturer, producer, packager,
importer, supplier, or distributor of a product
may comply with this article either by providing
a warning on the product
label or labeling that satisfies
Section 25249.6 of the Act, or
by providing a written
notice directly to the
authorized agent for the business to which they are
selling or transferring the product or to
the authorized agent for a retail seller
who is subject to Section 25249.6 of the Act, which:
(1) States that the product
may
result in an exposure
to one or more listed
chemicals;
(2) Includes the exact name
or description
of
the product or specific identifying information for the product
such as a Universal Product Code or other
identifying designation;
(3) Includes all necessary
warning materials such as
labels, labeling, shelf signs or
tags, and warning language for products sold
on the internet, that satisfies Section
25249.6 of the Act; and
(4) Has been sent to the
authorized agent for the business to which they are selling or transferring the product who
is subject to Section 25249.6
of the Act or to the authorized
agent for the retail seller, and the manufacturer, producer, packager, importer, supplier,
or distributor has
obtained confirmation electronically or in
writing of receipt
of the
notice.
(c) If the manufacturer, producer, packager, importer,
supplier, or distributor
of a product is complying
with this section by providing a written notice directly to the authorized agent for the
business to which they are selling or transferring the product who
is subject to Section 25249.6
of the Act or to the authorized
agent for the retail seller:
(1) Confirmation of receipt of the notice must be received electronically or in writing,
and must be renewed, and receipt of the
renewed notice confirmed electronically or in writing
by the authorized agent for
the
business to which
they are selling or transferring
the product who is subject to Section 25249.6
of the Act or the authorized
agent for the retail
seller's authorized
agent no later than February 28, 2019, then
annually thereafter during the period
in which
the
product is sold in California
by the retail seller.
(2)Where a business has not designated an authorized agent, the manufacturer, producer, packager, importer, supplier,
or distributor may serve the notice on the legal agent for
service of process
for the business.
(b) The manufacturer, producer,
packager, importer, supplier, or distributor
of a product
may comply with this article either by providing
a warning on the product
label or labeling that satisfies
Section 25249.6 of the Act, or
by providing a written
notice directly to the
authorized agent for the business to which they are
selling or transferring the product or to
the authorized agent for a retail seller
who is subject to Section 25249.6 of the Act....
(f) For purposes
of subsection
(e)(5), “actual knowledge” means specific
knowledge of the consumer
product exposure with
sufficient specificity for the retail
seller to readily identify the product that
requires a warning, and that is
received by the
authorized agent
or a person whose knowledge
can be imputed to the
retail seller from any reliable source.
If the source of this knowledge
is a notice served pursuant to
Section 25249.7(d)(1) of the Act, the
retail seller shall not be deemed
to have
actual knowledge of any consumer
product exposure that is alleged
in the notice until five business days after the retail
seller receives a notice that provides
a description of
the product
with sufficient specificity for the retail seller to readily identify
the product in accordance with
Article 9, section
25903(b)(2)(D).
The actual knowledge provision is in turn significant because it relates to the instances when a retailer becomes responsible for the warning.
(e) The
retail seller is responsible for providing the warning required by Section
25249.6 of the Act for a consumer product exposure only when one or more of the
following circumstances exist:
(5) The
retail seller has actual knowledge of the potential consumer product exposure
requiring the warning, and there is no manufacturer, producer, packager,
importer, supplier, or distributor of the product who: (A) Is a “person in the
course of doing business” under Section 25249.11(b) of the Act, and (B) Has
designated an agent for service of process in California, or has a place of
business in California.
OEHHA will receive comments by 5:00 p.m. on December 31,
2018. All comments will be posted on the OEHHA website at the close of the
public comment period.
