The California Office of Environmental Health Hazard Assessment (OEHHA) seeks to amend the regulations under the Safe Drinking Water and Toxic Enforcement Act of 1986 (aka “Proposition 65”) to add specific tailored “safe harbor exposure warning methods and content” for retail products that can expose consumers to cannabis (marijuana) smoke or delta-9-THC via inhalation, ingestion, or dermal application, and for environmental exposures to cannabis smoke and delta-9-THC at businesses where smoking of cannabis or vaping or dabbing of delta-9-THC occurs. OEHHA added cannabis (marijuana) smoke and delta-9-tetrahydrocannabinol (delta-9-THC) to the Proposition 65 list for developmental toxicity on January 3, 2020 (effective January 3, 2021), and marijuana (cannabis) smoke has been listed for cancer since June 19, 2009.
OEHHA believes it would be beneficial to adopt safe harbor warning regulations for exposures to cannabis smoke and delta-9-THC to provide guidance to the businesses affected by this new listing. Exposure-specific “tailored warning” methods of transmission and content will provide certainty to businesses subject to the warning requirements of Proposition 65, as long as those warnings are followed verbatim.
The proposed warnings would be optional. Businesses may choose to use a different method or content for required warnings, as long as the warning satisfies the statutory “clear and reasonable” standard. Historically, however, businesses that stray from the State’s safe harbor option risk receiving and defending claims alleging warning violations.
OEHHA is proposing to amend the warning regulations to provide tailored safe harbor warning methods and content for:
- Exposures from cannabis products that are smoked
- Exposures to delta-9-THC from products that are ingested
- Exposures to delta-9-THC from products that are vaped or dabbed
- Exposures to delta-9-THC from products that are applied dermally
- Environmental exposures to cannabis (marijuana) smoke or delta-9-THC vapor in establishments where such exposures can occur on the premises of the business
Finally, products made with CBD or other cannabinoids or purified extracts of the cannabis plants (i.e., that do not cause exposures to delta-9-THC or other Proposition 65 listed chemicals) do not require a Proposition 65 warning. The proposed amendments discussed above do not apply to those products.
OEHHA is accepting public comments until May 18, 2021, the designated close of the written comment period. For specifics on the proposed “tailored warnings” and how they may help your business, please contact one of the attorneys listed in this post or the Reed Smith attorney you regularly work with.