OEHHA Proposes Changes To Prop 65 Short Form Warnings

Husch Blackwell LLP

Recently, the Office of Environmental Health Hazard Assessment (OEHHA) proposed to amend the Proposition 65 regulations related to short form warnings. Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses to provide “clear and reasonable” warnings before knowingly and intentionally exposing Californians to listed chemicals. These warnings are required to appear on a wide range of products, including foods.

Over the last several years, many companies have chosen to use the short form warning because it takes up less label space and does not require companies to identify the warning identify a specific chemical.  In the proposal, OEHHA seeks to greatly restrict the use of short form warnings. In particular, OEHHA points out that “widespread use of short-form warnings in ways that were not intended and do not further the purposes of Proposition 65.” OEHHA believes that the misuse has resulted in providing less information to consumers and allow for circumstances where companies provide a warning without conducting an assessment of whether there is an actual risk of exposure.

Accordingly, the proposal would:

  • Restrict short-form warnings to products with 5 square inches or less of label space (and the package shape or size cannot accommodate the full-length warning).
  • Retain the requirement that the short-form warning type size be no smaller than “the largest type size used for other consumer information on the product,” and no smaller than 6-point type.
  • Eliminate use of the short-form warning in catalogues and on websites (which has been allowed for products that use a short-form warning on-product).
  • Require the short form warning to identify at least one chemical for which the warning is being provided.
  • Allow the use of short form warnings on food products.
  • Provide manufacturers after the rule is finalized to adopt the revised short form warnings on consumer products and foods.
  • Allow manufacturers to sell-through products manufactured prior to the compliance date that provide short form warnings compliant with the August 2016 revisions to the Proposition 65 warnings.

OEHHA has scheduled a virtual public hearing on March 11, 2021, at 10:00 a.m. on the proposed amendments to the short form warnings. Details regarding the hearing will be posted on the OEHHA website closer to the date of the virtual hearing. OEHHA is accepting comments on these proposed changes until March 29, 2021.

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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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