Contributors

Eric P. Weiss

Principal

The California Office of Environmental Health Hazard Assessment (OEHHA) has made clear that it intends to modify and/or limit the use of so-called “Short-Form” warnings required by Proposition 65. In December of 2021, OEHHA issued a modified proposal and requested public comment by January 14, 2022, later extended to January 21, 2022. The proposed modifications, which slightly scale back the initially proposed restrictions but continue to limit the use of the short-form warning. In particular, the proposed modifications include:

• Setting the maximum label size for short form warnings at 12 square inches (an increase from the originally proposed 5 square inches). OEHHA contends that the change addresses concerns that the original proposed limit was too small to be meaningful and that “a 12 square inch limit would accommodate these concerns, while still limiting use of the short-form warnings to packages with limited available label space for consumer product information that would not easily accommodate the full warning.”
• Removing the originally proposed prohibition on use of the short form in online warnings or catalogs. Accordingly, the current regulatory language allowing on-line and catalog use of the short form warning for products that have the short form warning on package would remain in place. This shift responds to concerns about having “varying warning language for the same products,” as well as the possibility of potential retailer liability for providing the incorrect warning language.
• Adding new signal word options “CA WARNING” or “CALIFORNIA WARNING” in lieu of the generic “WARNING” phrase at the start of the warning text. This shift follows an increasing trend in companies providing warning statements by referring to the California program explicitly in an effort to make clear to consumers that the warning is a product of California law (which may, perhaps, signal to sentient human beings that the warning is rooted in an oddball requirement coming out of the “Left Coast”; though, while a nod towards reality, not likely OEHHA’s intended purpose).
• Including more warning options that “more directly address exposure to carcinogens or reproductive toxicants to provide an additional safe harbor warning that can be used on the product label.” Currently, short form warnings look like:

 

If finalized, the new short form warnings options would include:

In June of 2022, OEHHA announced that it will not be moving forward with the current proposal to amend Proposition 65 “short-form” warnings and that the agency will initiate a new rulemaking. The regulatory delay is due to the state’s procedural rulemaking requirements, and does not signal any lack of interest in OEHHA pursuing fundamental revisions to limit use of the popular “short form” warning option.

Under California’s Administrative Procedure Act, a rulemaking must be completed within one-year of the date it was first noticed to the public. While the one-year period was temporarily extended due to the COVID-19 pandemic, OEHHA was unable to complete the regulatory process within the allotted time after the initial proposal in January 2021. Accordingly, OEHHA allowed the rulemaking to lapse and “intends to restart the rulemaking process on the short-form

with a new regulatory proposal, informed by comments on the previous proposal, in the next several weeks.” To date, OEHHA has not restarted the process.