Selling into California and Using the Prop 65 Short-Form Warning? Pay Attention – Your Labeling May Need to Change Very Soon!

Alston & Bird
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Our Environment, Land Use & Natural Resources Group examines the broad changes to California’s Proposition 65 short-form warnings that will impact every business selling anything in California.

  • What is being proposed?
  • What are the justifications for the changes?
  • How do I follow or participate in the process?

All manufacturers and sellers of products into California, many if not most of whom switched over all their Proposition 65 labels in 2018 to comply with the then-new Prop 65 short-form warning, may need to redo all their labeling again very soon. Also, many of the advantages of using the short-form warning may soon be eradicated.

On January 8, the California Office of Environmental Health Hazard Assessment (OEHHA) issued a Notice of Proposed Rulemaking for amendments to the state’s regulations for short-form Prop 65 safe harbor warnings. All businesses presently relying on short-form warnings should take note of the state’s proposal because the amendments involve broad changes to how the warnings are written and applied.

What Is Being Proposed?

The proposed amendments will impose updated short-form warning requirements, replacing those that went into effect in August 2018.

Key changes include:

  • Requiring that short-form warnings now name at least one Prop 65 listed chemical.
  • Restricting the use of short-form warnings to products with no more than 5 square inches of label space.
  • Eliminating the ability of Internet and catalog postings to rely on short-form warnings.
  • Clarifying the application of short-form warnings for food exposures.

What Are the Justifications for These Changes?

OEHHA indicates that the proposed amendments seek to address business and consumer confusion over the existing short-form warning requirements.

Specifically:

  • Identification of a Prop 65 listed chemical is intended to reduce consumer inquiries to OEHHA and discourage use of the short-form warnings as a prophylactic when businesses lack knowledge of a specific chemical exposure.
  • The changes are also intended to discourage overuse of short-form warnings by restricting application to only those products with very limited label space and eliminating the short-form warning option for Internet and catalog listings.
  • Businesses applying short-form warnings for food exposures will now have a food-specific short-form standard to follow.

How Do I Follow Along or Participate in the Process?

OEHHA will be collecting public comments on the proposed amendments until Monday, March 8, 2021. Interested parties can also request a public hearing on the proposed amendments if their request is submitted to OEHHA before February 22, 2021.

Instructions for submitting comments and hearing requests can be found on OEHHA’s website.

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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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