Proposition 65 Short-Form Warnings May No Longer Be Short

Pillsbury Winthrop Shaw Pittman LLP

If proposed amendments are adopted, the use and benefit of short-form on-product warnings will be significantly limited. The use of short-form for internet and catalog warnings will be completely eliminated.

TAKEAWAYS

  • Proposed amendments only allow short-form warnings on products with five square inches or less of label space.
  • Short-form warnings will be required to name at least one chemical.
  • Businesses will have a one-year phase-in period and an unlimited sell-through period.

On January 8, 2021, California’s Office of Environmental Health Hazard Assessment (OEHHA) issued a Notice of Proposed Rulemaking regarding Proposition 65 short-form warnings. The written comment period closes on March 8, 2021.

Short-Form Warnings Under Existing Regulations

The short-form warning is one of four methods of providing a physical warning on or with the consumer product; for example, “WARNING: Reproductive Harm – For more information go to www.P65Warnings.ca.gov.” [27 C.C.R section 25602(a)(4).] Unlike the long-form warning, a short-form warning is not required to include the name or names of a listed chemical. [27 C.C.R. § 25603(c).]

If the product’s physical label uses a short-form warning, the associated internet/website warning may also utilize the same short-form warning.

Summary of Proposed Changes

The proposed amendments to Proposition 65 only allow the use of short-form warnings on products with five square inches or less of label space. Significantly, the short-form warnings would also be required to name at least one chemical associated with either reproductive harm or cancer. For example, “WARNING: “Risk of Reproductive Harm From [name of one or more chemicals] Exposure –www.P65Warnings.ca.gov.”

Short-form warnings would no longer be permitted for internet/website and catalog warnings. This would be true even for products permitted to use the short-form warning because their labels are five square inches or less. For food products, the short-form warning must be set off from other surrounding information and enclosed in a box.

The proposed amendments provide a one-year phase-in period for businesses to transition to the modified short-form warning (or elimination of the short-form warning altogether). In addition, there is an unlimited sell-through period for products that had compliant warnings when they were manufactured, so businesses would not be required to recall items already in the stream of commerce.

Reasons for Proposed Changes

OEHHA’s primary concern is that short-form warnings are not currently being used as originally intended – for labels on small products that could not accommodate the full-length warning. Instead, they are being used for larger products that have more than enough label space to accommodate the longer warning language.

Because existing short-form warnings do not require businesses to identify a specific chemical, OEHHA is also concerned with warnings issued prophylactically, leading to “over-warning.” Even though businesses may not have had knowledge of an exposure to a listed chemical, it was practical to include a short-form warning and take advantage of safe harbor protection.

Impact on Businesses

Even if the label space and package shape or size qualifies a product for the modified short-form warning, businesses are required to name at least one chemical in order to obtain safe harbor protection. Businesses will need to select a chemical based on their knowledge or assumption about the presence of that chemical in the product.

[View source.]

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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