On December 13, 2021, the California Office of Environmental Health Hazard Assessment (“OEHHA”) issued another notice in its efforts to amend the short-form warning regulations under the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65.
Beginning in 2018, companies could comply with Proposition 65 by using the short-form warning. While OEHHA originally intended this warning to be used for small products that could not accommodate the long-form warning, the Proposition 65 regulations did not prohibit the short-form warning on larger products. Many companies use the short-form warning option because, unlike the long-form warning, the short-form warning does not require the identification of any chemicals, and this allows companies to use the same warning across all product lines. For companies with thousands of different products, it can be cost-prohibitive to try to grapple with developing and applying unique labels for each product and chemical combination.
Earlier this year, OEHHA became concerned that the short-form warning was being overused on products of all sizes and was not providing any specific chemical information to consumers. Thus, on January 8, 2021, OEHHA proposed to amend the short-form warning regulations to require the identification of at least one chemical, and to limit its use to products with five square inches or less of label space and where the total size of the package could not accommodate the full-length warning. OEHHA received over one hundred comments to its proposed amendments. In response to comments, OEHHA issued another proposed amendment to the short-form warning regulations. While OEHHA retained the requirement from the January proposal to identify at least one chemical in the warning, it modified the proposed regulation to, among other things, increase the maximum surface area of the label available for consumer information from five square inches to 12 square inches, continue to allow use of the short-form warning on the internet or in catalogs where the short-form warning is used on the product label, and provide additional warning language options.
Further, new signal word options were added in several sections to allow businesses to make clear that the Proposition 65 warning is being given pursuant to California law. Currently, the warning must include the word “WARNING.” Under the proposal, companies also would have the option of using “CA WARNING” or “CALIFORNIA WARNING.” Because most companies use the same labels for products sold in California and elsewhere, this reference to California may explain the presence of the warning for non-California consumers that are unfamiliar with Proposition 65.
As proposed, the amendments would become operative one year after the effective date. Thus, manufacturers would have one year after the effective date to revise their Proposition 65 warnings. Additionally, there is an unlimited sell-through period for products manufactured up to the operative date. Alternatively, businesses may use the amended warning prior to the operative date.
OEHHA is accepting comments on the proposed amendments until Friday, January 14, 2022. If you would like to submit comments, or if you have any questions regarding Proposition 65, please contact AnnMarie Sanford.
About the Author
AnnMarie Sanford, a Member in Dickinson Wright’s Troy office, is primarily engaged in environmental remediation, regulatory issues and counseling clients regarding compliance with federal and state chemical regulations. She can be reached at 248-205-3246 or firstname.lastname@example.org, and her biography can be accessed here.