Contributors

Eric P. Weiss

Principal

California’s Office of Environmental Health Hazard Assessment (“OEHHA”) is the agency responsible for regulating Proposition. In October of 2023, OEHHA published a Notice of Proposed Rulemaking, proposing amendments to existing sections of the safe harbor warning regulations for consumer product exposures. In particular, OEHHA is proposing a significant change to the Proposition 65 “short-form warning” to require that this warning identify a specific Proposition 65 chemical. Currently, the short-form warning requires identification of the potential risk (i.e. cancer or reproductive harm) but not the chemical that has triggered the warning requirement.

This is not the first time OEHHA has tried to propose changes to the short-form warning. The prior attempt in 2022 faced vigorous opposition from the industry (i.e. manufacturers, distributors and retailers) which lead to OEHHA declaring that it could not conclude the rulemaking process within the stipulated one-year period. As evidence by the new proposal, OEHHA is determined to act. However, OEHHA again faces stiff opposition by industry groups.

Current short-form requirements

Currently, companies can utilize the “short-form” consumer product warning, which is a succinct warning requiring only the hazard symbol, the word WARNING, a reference to a state-maintained website, and the potential risk from exposure to chemicals in the product. The approved short-form warnings look like this:

Crucially, the current framework does not mandate the identification of a specific chemical, and there are no restrictions on the frequency of short-form warning usage.

In its current proposal, OEHHA has identified concerns with the current short-form warnings: (1) unintended use of the warning and overall lack of information, (2) confusion about whether products purchased on the internet or through a catalog also require an on-product warning, (3) the font size requirement is impractical, (4) there is uncertainty on the use for food products and (5) challenges for the passenger and off-highway motor vehicle and recreational marine vessel replacement-part industry due to the number of products, size of products and unique exposure issues.

Proposed revisions

The proposed changes will require the following on short-form warnings:

• The proposed changes will mandate the identification of a specific chemical.
• With respect to font size, the warning currently has to be in “a type size no smaller than the largest type size used for other consumer information on the product.” The proposal requires the warning to be conspicuous and prominently displayed in relation to the product and other information provided on the label.
• Both long and short-form warnings are permissible for internet and catalog transactions.
• There are options for warnings on product display pages or via hyperlinks using designated signal words to indicate the warning is for CA consumers (i.e. “CA WARNING” OR “CALIFORNIA “WARNING.”)
• There is an explicit statement that the warning must be included with the product when delivered to the consumer if the product is sold online or in a catalog.
• Pre-purchase warnings, including pop-up notifications during the online purchasing process, are recommended.
• Delivery warnings offer a spectrum of options, from full packaging warnings to tailored warnings for specific products.
• If other consumer information provided about a product is in a language other than English, the Prop 65 warning must match.

If the proposal becomes final, the new short-form warning will look something like this:

Status of proposed amendments

The proposed amendments were published in October of 2023. Comments were submitted by 197 different groups, mainly from manufacturers and industry trade groups. A hearing was held on December 13, 2023 to hear those comments. We are now waiting to see if OEHHA moves forward with the proposed amendments or rather, as in 2022, it will table the issue for another year. We will monitor for future developments.

Impact on industry

Fortunately, the proposal provides for a grace period so that products with the current short-form warnings will be considered compliant for a period of two years from the date of the amendment becomes final. Nevertheless, if the proposed regulations are adopted, manufacturers will need to reconsider their strategies for avoiding “bounty-hunter” shakedown lawsuits. In particular, manufacturers of products sold in California should conduct a thorough analysis of the chemical constituents of their products, as well as their current labeling regime, supply chain obligations with the assumption that these changes will become final during the next six months, triggering the two-year grace period.`