Potential Changes to Prop. 65 Coming Soon
December 8, 2019 (updated December 12, 2019)
By Lauren Mendelsohn
On December 11, the Developmental and Reproductive Toxicant Identification Committee (DARTIC) of OEHHA’s Science Advisory Board will meet to decide whether “Cannabis (Marijuana) Smoke” and “Δ-9-THC” should be added to the Proposition 65 list as reproductive intoxicants.
The Office of Environmental Health Hazard Assessment (OEHHA) is the agency that oversees California’s Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, which we’ve previously discussed in detail here. Proposition 65 requires companies who expose people to potentially harmful chemicals provide a warning first, and also requires that the state maintain a list of chemicals known to cause both cancer and reproductive harm. Some chemicals are on both lists. “Marijuana smoke” was added to the Prop. 65 list as a possible carcinogen in 2009.
Earlier this year, OEHHA announced that they were gathering information about whether to add cannabis, cannabis smoke, cannabis extracts, and Δ-9-THC to the reproductive harm list. A public comment period was open from March 15, 2019 to April 30, 2019 and during that period only nine comments were received. On October 4, the OEHHA published a 441-page document called “Evidence on the Developmental Toxicity of Cannabis (Marijuana) Smoke and Δ-9-THC” and announced the December 11 meeting of the DARTIC. The public was given a 45-day period to comment on this document, which elapsed on November 18, 2019.
The December 11 meeting of the OEHHA will take place from 10:00am to 5:00pm in the Sierra Hearing Room at the CalEPA Headquarters building, located at 1001 I Street, Sacramento, California. The agenda for the meeting is available here. Questions about this can be sent to Tyler Saechao at Tyler.Saechao@OEHHA.ca.gov or (916) 445-6900.
If the DARTIC decides to add cannabis smoke and Δ-9-THC to the reproductive harm list, then an OEHHA committee will determine whether there is a “safe harbor level” for each of these substances, meaning levels at which exposure is considered so minimal that no warning is required. However, the OEHHA did not set a safe harbor level for marijuana smoke, so it is very possible that no safe harbor level will be set for cannabis smoke or Δ-9-THC either. In that case, businesses who sell goods that could expose a consumer or an employee to cannabis smoke or Δ-9-THC would have to provide appropriate warnings on their products or in their workplace for any potential consumer or environmental exposure. This is in addition to any other warnings they would be required to provide.
If cannabis smoke and Δ-9-THC are added to the Prop. 65 list for reproductive harm and no safe harbor level is adopted, many cannabis companies will likely have to change the warnings provided on or with their products. However, some businesses who’ve been using the “short form” warning in accordance with the updates that went into effect last year have already been providing a warning for reproductive harm in addition to cancer, since there are other chemicals that may be found in cannabis products (or even the packaging they’re contained in) which are included on the reproductive harm list. Therefore, cannabis businesses could continue using the following short-form warning to cover both cancer and reproductive harm if they are already doing so, and businesses who are not currently using this warning might want to consider following suit in order to avoid being penalized or having to provide a longer, more detailed warning:
Stay tuned to our blog for more updates regarding Prop. 65, including the outcome of the upcoming meeting.
UPDATE (12/12/19): The OEHHA’s Developmental and Reproductive Toxicant Identification Committee voted yesterday to add both cannabis smoke and Δ-9-THC to the list of substances known to cause developmental toxicity.
This information is provided as an educational public service and is not intended as legal advice. For specific questions regarding California’s Proposition 65, including how cannabis and hemp companies can comply with the warning requirements, contact the Law Offices of Omar Figueroa at (707) 829-0215 or info@omarfigueroa.com.