Proposition 65 Advisory

State Clarifies Application of Out-of-State Manufacturer Exemption

A recent letter issued by the Office of the Attorney General and the Division of Occupational Health and Safety clarifies that the Proposition 65 exemption for out-of-state manufacturers applies to items defined as "articles" under the California Hazard Communication Standard ("Standard").

The July 11, 2002 letter from Deputy Attorney General Edward G. Weil and California Occupational Safety and Health Chief Counsel Michael D. Mason responded to correspondence from a Proposition 65 plaintiff's attorney who had initiated Proposition 65 enforcement actions against manufacturers and retailers of light bulbs, and inquired whether the exemption under the Standard for out-of-state manufacturers applies to articles, which are excluded from the requirements of the Standard. "Articles" are defined as manufactured items that do not release a hazardous substance under normal conditions of use.

The plaintiff's counsel asserted that exposure in the workplace to articles and to "consumer products" that satisfy the definition of "articles" is outside the scope of the requirements of the Standard, and thus to the limitations of the Standard as well, including the exemption under the Standard for out-of-state manufacturers. Such an interpretation would pave the way for Proposition 65 lawsuits alleging exposures to "articles," or "consumer products" that are also "articles" such as light bulbs used in the workplace - even if they were manufactured outside of California.

Mr. Weil and Mr. Mason confirmed that the out-of-state manufacturer exemption applies to "articles" used in the workplace. They noted that state requirements governing workplace warnings for articles are preempted by the federal Occupational Safety and Health Act, unless they are included in the federally-approved Standard. As a result, articles are governed by the requirements and the limitations imposed under the Standard, including the limitation that out-of-state manufacturers are excepted from its warning requirements. Mr. Weil and Mr. Mason further confirmed that the out-of-state manufacturer exemption may apply to "consumer products" used in the workplace. The officials found that while exposure to a consumer product in the workplace may result in an "occupational exposure" when it is caused by the employer, and a "consumer product exposure" when it is caused by the product manufacturer, both are governed by the Standard, including its exemption for out-of-state manufacturers.

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