OEHHA Proposes New Rules for Businesses Using Proposition 65's Short-Form Warnings

This month, the Office of Environmental Health Hazard Assessment (OEHHA) proposed substantial changes to Proposition 65’s short-form warning requirements.

For those businesses currently using the Proposition 65 short-form warnings on their product labels and websites, and for those businesses selling food products in California, the methods and strategies for remaining compliant may be changing, yet again.

Proposed Changes to Short-Form Warnings

Under the proposed amendment, businesses utilizing the short-form warning would be:

• Required to List Chemical Name and Include the Words "Risk" and "Exposure" – The proposed amendment requires that the short-form warning include the name of a listed chemical for each exposure pathway and include the words "Risk" and "Exposure" in the warning. For example, the new short-form warning text for a product containing a listed carcinogen or a listed reproductive toxicant would be:
  
  ⚠ WARNING: Cancer Risk From [Name of one or more chemicals known to cause cancer] Exposure - www.P65Warnings.ca.gov
  
  ⚠ WARNING: Risk of Reproductive Harm From [Name of one or more chemicals known to cause reproductive toxicity] Exposure - www.P65Warnings.ca.gov
• If a product contains both a listed carcinogen and a listed reproductive toxicant, the chemical name for each pathway would have to be listed, but only one chemical from each pathway is required:
  
  ⚠ WARNING: Cancer Risk from [insert chemical name] and Reproductive Risk from [insert chemical name] Exposure – www.P65Warnings.ca.gov
  
  
• No Longer Permitted for Internet or Catalog Sales – The proposed amendment prohibits the use of short-form warnings for internet and catalog sales (regardless of whether a short-form warning is used on the product label in compliance with current regulations).
• Restricted for Use Only on Smaller Products – The proposed amendment restricts the use of the short-form warning to only those products where: (1) the total surface area of the product label available for consumer information is 5 square inches or less; and (2) the package shape or size cannot accommodate the full warning.
• Permitted on Food Products with Limitations – The proposed amendment permits short-form warnings on food products but requires that: (1) the warning include the relevant chemical name for each exposure pathway and include the words "Risk" and "Exposure" in the warning; and (2) the warning be set off from other surrounding information and enclosed in a box.

The Road Ahead

OEHHA has initiated a rulemaking to receive comments on the proposed changes to Proposition 65. Comments are due on March 8, 2021.

If the proposed amendments are approved, they would not become effective until one year after the date of approval. Thus, a warning for a consumer product manufactured prior to the effective date (one year after approval) would be deemed clear and reasonable as long as it complied with the prior August 2016 Proposition 65 amendments.

If the amendments become effective, businesses using the short-form warnings may need to conduct chemical testing on products sold in California and identify specific listed chemicals to remain in compliance. In anticipation of the proposed changes, businesses selling consumer products in California that are utilizing the short-form warnings may want to consider updating their Proposition 65 compliance strategy.