OEHHA Proposes (additional) Changes to Prop 65 Short Form Warnings

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About a year ago, the Office of Environmental Health Hazard Assessment (OEHHA) proposed to amend the short form warning rules for Proposition 65.  Proposition 65 requires businesses to warn Californians about exposure to certain chemicals through “clear and reasonable” warnings.  There are currently two forms of “safe harbor” warnings, one of which is the short form warning. The short form warning requires less detail, takes up less label space, and does not require the listing of any chemical names, which has made it a popular choice.

OEHHA, concerned about misuse of the short form warning proposed to modify the short form warning rule in early 2021 to provide consumers with more detailed information and to limit the use of short form warnings to small products.  The public comment period for these initial proposed revisions closed on March 29, 2021. Following the public comment period and a public hearing, OEHHA received over 150 written and oral comments. In response to those comments OEHHA is now proposing the following modifications to the proposed rule:

  • Increasing the maximum label size for short form warnings from 5 square inches to 12 square inches
  • Continuing to allow the use of short form warnings on websites and catalogs
  • Adding additional signal options: “CA Warning” and “California Warning”
  • Creating an additional warning option for exposure to carcinogens or reproductive toxicants
  • Removing the use of the term “product label” to increase clarity

While the proposed rule will still limit the use of short form warning, the above modifications offer some relief.  The modified proposed rule is available here.  OEHHA is requesting comments on the proposed modifications until January 14, 2022.

If your organization is interested in commenting on this proposed regulation, contact one of Husch Blackwell’s Proposition 65 legal team members. Our team also assists manufacturers in determining whether their products are covered by Proposition 65, provide assistance designing complainant warnings, as well as serve as legal counsel to address a Proposition 65 60-day notices.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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