On April 5, 2022, the California Office of Environmental Health Hazard Assessment (OEHHA) issued a notice recommending additional revisions to its proposal to modify Proposition 65 (Prop 65) Article 6 “clear and reasonable warnings” regulations for “short-form” warnings (Notice). OEHHA first proposed to change the short-form warning requirements on January 8, 2021. This column explains the significance of this development.
Background
Prop 65 regulations provide an option for a “short-form” warning as an alternative to the general requirements for consumer product exposure warnings. This option requires the hazard symbol, the word “warning” in capital letters and bold print and a reference to OEHHA’s website. There is no limit regarding when the short-form warning can be used (e.g., limited label space). Importantly, the short-form warning doesn’t require a company to name a listed chemical within the label’s text.
OEHHA’s January 2021 proposal sought to limit when the short-form warning could be used. This includes restricting us to labels smaller than a certain size (i.e., 5 in.2 or less) and eliminating the short-form warning option for Internet and catalog warnings. If the criteria could be satisfied, OEHHA further suggested editing the short-form warning language, including the requirement to list a Prop 65 substance.
Following OEHHA’s review of comments, the agency suggested additional changes. OEHHA has proposed to increase the label size requirement to 12 in2. OEHHA rescinded its initial proposal to prohibit using the short-form warning online and in catalogs. Regarding the short-form warning language, OEHHA recommended two additional modifications:
1. Instead of only permitting the word “WARNING” in capital letters and bold print, include two other options: “CA WARNING” or “CALIFORNIA WARNING.” OEHHA states this is to “allow businesses to make clear that the warning is being given pursuant to California law.”
2. A warning option that OEHHA states “more directly addresses exposure to carcinogens or reproductive toxicants.”
Current Modifications
In its April 5, 2022 Notice, OEHHA suggested further alterations to its short-form warning regulations. These include:
• Label Size: Eliminate any size or package shape conditions for when the short-form warning can be used. These changes mean the short-form warning can be “used on product labels of any size, regardless of package size and shape.” Apparently, OEHHA has difficulty determining compliance with the provision because of the lack of specificity in how to determine whether the package shape and label could or could not accommodate the full-length warning.
• Font Size: Remove the requirement that the font type size be the same as the largest type size providing consumer information. OEHHA suggested this change because recent federal requirements would in some cases result in oversized short-form warnings, and provide a disincentive to adding Proposition 65 warnings to labels.
• Effective Date: Change the date the regulation becomes operative to two years from the effective date rather than the one year previously sought. The additional time provided is a direct response to concerns raised by industry that the one-year time period was insufficient to implement the changes.
• “Expose” Language: Change the warning language from “exposes you to” to “can expose you to” so the language conforms with the general content language in the general consumer warning in Section 25603.
OEHHA also wants to correct the regulatory text regarding the warning to state “[name of chemical]” instead of “[name of one or more chemicals known to].”
Discussion
The short-form warning is very popular. These suggested modifications are improvements to OEHHA’s initial proposals. The label size changes and one-year compliance period are important issues about which industry raised significant concerns. The short-form warning language, if adopted, will continue to invite substantial changes in requiring the inclusion of a Prop 65 listed substance, but the elimination of size restrictions and font requirements, as well as permitting short-form warnings online and in catalogs when the label also uses the short-form warning, means the short-form warning option remains viable.
Prop 65 compliance continues to be a hot button issue for any entity doing business in California. Tracking these often-changing requirements is essential to avoid assertions of non-compliance by the state and citizen enforcers.
LYNN L. BERGESON is Chemical Processing's Regulatory Editor. You can e-mail her at [email protected]
Lynn is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on conventional, biobased, and nanoscale chemical industry issues. She served as chair of the American Bar Association Section of Environment, Energy, and Resources (2005-2006). The views expressed herein are solely those of the author. This column is not intended to provide, nor should be construed as, legal advice.
