The proposal, which aims to clarify when short-form warnings should be used, would also create new requirements for information about harmful chemicals.

On December 13, 2021, the California Office of Environmental Health Hazard Assessment (OEHHA) published a notice of modified text to its proposed short-form warning regulations of California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65 or Prop 65). As Latham previously reported, OEHHA had initially proposed amendments to its short-form warning regulations on January 8, 2021, which initiated a public comment period that ran through March 29, 2021. The December 13, 2021 proposed regulatory text (Proposed Amendments) respond to public comments received during the public comment period. A new public comment period for the Proposed Amendments will run from December 17, 2021 to January 14, 2022.

Summary of Changes

The Proposed Amendments are consistent with the goals of OEHHA’s January 8, 2021 proposal to require more specific information in short-form warnings and to limit the use of the safe harbor short-form warning to small products. Indeed, the proposed regulatory text released on December 13, 2021 is identical to the January 8, 2021 rulemaking, with the exception of the following changes:

• Increasing the maximum label size for short-form warnings to 12 inches. The January 8, 2021 proposal stated that a short-form warning could only be used if the total surface area of the product label available for consumer information was five square inches or less and the package shape or size could not accommodate a full-length warning. In the Proposed Amendments, OEHHA has increased the maximum label size for short-form warnings from five square inches to 12 square inches.
• Using short-form warning on the internet or in catalogs. In the January 8, 2021 proposal, the currently authorized option to use the short-form warning content for online warnings or in catalogs had been eliminated. In the Proposed Amendments, the existing regulatory text has been reintroduced, allowing for short-form warnings on websites and in catalogs when the product itself uses a short-form warning.
• Additional signal word options. The Proposed Amendments would permit additional signal word options, like “CA WARNING” or “CALIFORNIA WARNING,” that can be used for warnings, including short-form warnings.
• Minor clarifications on the wording of the warning. The January 8, 2021 proposal required chemical information to be listed in short-form warnings (i.e., the name of a listed chemical for each exposure pathway) and how short-form warnings should appear if a product contains both carcinogens and reproductive toxicants. These requirements were carried over to the Proposed Amendments; however, OEHHA is allowing short-form labels to include some modified wording. For example, for exposures to listed carcinogens, the short-form warning could use either of the following:

WARNING: Cancer Risk From [name of chemical] – www.P65Warnings.ca.gov.

WARNING: Exposes you to [name of chemical], a carcinogen – www.P65Warnings.ca.gov.

Finally, these minor clarifications on the wording of warning, as well as the additional signal word options, notably also apply to short-form warnings on food labels. As a reminder, the January 8, 2021 proposal clarified that short-form warnings may be used for food products, a point that was previously unclear. This clarification has been carried through in the Proposed Amendments.

Key Takeaways and Next Steps

The comment period for the Proposed Amendments extends through January 14, 2022. If the Proposed Amendments become effective, businesses will have one year to bring their short-form warning practices into compliance. The regulations will become “operative” after this period. Short-form warnings on products manufactured before the operative date of the amendments will continue to be considered compliant with Prop 65 if they follow the 2016 Regulations.