Effective October 26, 2018, the California Office of Environmental Health Hazard Assessment (OEHHA) is adding Nickel (soluble compounds) to the list of chemicals known to the state to cause reproductive toxicity for purposes of the Safe Drinking Water and Toxic Enforcement Act of 1986.

The listing of nickel (soluble compounds) means that warning requirements will apply in one year—i.e., as of 26 October 2019.

The law firm of Bergeson & Campbell notes that “soluble” is not defined in the listing.

In one year, on October 26, 2019, businesses will be required to provide a “clear and reasonable” warning as amended, before knowingly and intentionally exposing anyone to nickel (soluble compounds). Limited exceptions apply, for example, if a business can show that Prop 65 warnings are not required based on exposure assessments conducted indicating that the exposure to nickel (soluble compounds) falls below an established “safe harbor” level. OEHHA has not yet, however, developed a safe harbor level (i.e., Maximum Allowable Dose Levels (MADL) for chemicals listed as causing birth defects or other reproductive harm) for nickel (soluble compounds), and it unfortunately is unclear if or when such a level would be developed.

Although OEHHA has several distinct listings for nickel—Nickel (Metallic), Nickel acetate, Nickel carbonate, Nickel carbonyl, Nickel compounds, Nickel hydroxide, Nickelocene, Nickel oxide, Nickel refinery dust from the pyrometallurgical process, and Nickel subsulfide—safe harbor levels have been developed by OEHHA for only two of these: Nickel refinery dust from the pyrometallurgical process and Nickel subsulfide. If required, the warning can be provided in several ways depending on the type of exposure, such as by labeling a consumer product, posting signs at the workplace, distributing notices at a rental housing complex, or publishing notices in a newspaper.

Companies thus should determine if nickel (soluble compounds) are present at any concentration in consumer products to be sold or distributed in California or in occupational or environmental settings in California, and if so, whether warnings may be required, the content of such warnings, and in what form those warnings must be communicated. Given the ubiquity of nickel in a wide range of products, this regulatory determination could prove significant.

—Bergeson & Campbell