By Joshua A. Bloom
As expected, California’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed significant changes to Proposition 65 warning requirements, limiting the use of the “short-form” warning.
Proposition 65 warning regulations provides a “safe harbor,” such that use of the language specified in the regulation is deemed to conclusively comply with Proposition 65 requirements. When OEHHA revised the Proposition 65 “clear and reasonable” warning requirements for consumer products in 2016, which became effective in 2018, it allowed for use of a “short-form” warning rather than the “long-form” warning. Whereas the safe harbor long-form warning requires that the warning include the name of at least one Proposition 65 chemical that could result in exposure from the product’s use, the short-form warning is much more abbreviated. For example, if a product contains a chemical listed under Proposition 65 for its carcinogenic effects, the long-form warning requires, along with a yellow equilateral triangle surrounding an exclamation point symbol and the word “WARNING” capitalized, the following language: “This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer. For more information go to www.P65Warnings.ca.gov.” The short-form, warning, however, simply requires the symbol and “WARNING” to be accompanied by the following: “Cancer-www.P65Warnings.ca.gov.”
When those 2016 amendments were first proposed, OEHHA suggested a short-form warning that could be incorporated only when the consumer product was so small such that there was no room on the product for the long-form warning. However, over the course of public comments and various revisions to the proposal, the final version permitted use of the short-form warning on any consumer product, regardless of the size of the product and availability of space for the long-form warning. OEHHA is now proposing changes to the 2018 regulation, reverting back to its original concept of permitting a short-form warning only for products that do not have space to fit the long-form warning.
Specifically, the proposed amendment to Title 27, section 25602 of the California Code of Regulations is that the short-form warning may only be used where the total surface area of the product label available for consumer information is five square inches or less, and the package shape or size cannot accommodate the long-form warning. Moreover, OEHHA further proposes that even where use of short-form warning is permissible, it must include the name of at least one Proposition-listed chemical to which the consumer may be exposed to. Using the example of a chemical listed for its carcinogenic properties, the safe harbor short-form warning would be, (following insertion of the triangular symbol and “WARNING”), the words “Cancer Risk From [Name of one or more chemicals known to cause cancer] Exposure - www.P65Warnings.ca.gov”.
With respect to exposure listed on the basis of reproductive harm, the language of short-form warning would be “Risk of Reproductive Harm From [Name of
one or more chemicals known to cause reproductive toxicity] Exposure -www.P65Warnings.ca.gov”. For exposures to a chemical that is listed as both a carcinogen and a
reproductive toxicant, the safe harbor short-form warning language would be “Risk of Cancer and Reproductive Harm From [name of one or more chemicals known to cause cancer and reproductive toxicity] Exposure - www.P65Warnings.ca.gov.” If exposure from the product can come from two different chemicals, one listed for carcinogenic harm and the other for reproductive toxicity, the warning language would be “Risk of Cancer From [Name of one or more chemicals known to cause cancer] And Reproductive Harm From [Name of one or more chemicals known to cause reproductive toxicity] Exposure - www.P65Warnings.ca.gov.”
Moreover, under the 2016 regulations, short-form regulations may be used for catalog and internet warnings if the product itself includes the short-form warning. Under the revised regulations, that would no longer be the case.
If these changes were formally put into place, they would only apply to products manufactured one year or more after the effective date of the revised regulations. There would be no prohibition on following the revised regulations, once put into place, prior to the one-year post effective date deadline.
The proposed regulations, Initial Statement of Reasons, and notice can be found at https://oehha.ca.gov/proposition-65/crnr/notice-proposed-rulemaking-amendments-article-6-clear-and-reasonable-warnings-0. Written comments are due by March 8, 2021.