The California Office of Environmental Health Hazard Assessment (OEHHA) has proposed to significantly amend the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65, to revise the method of transmission and content of State-approved “safe harbor” short-form warnings for consumer products.

OEHHA believes implementation of the warning regulations has revealed the need for express limits on the use of the short-form warning for consumer products. The regulation did not expressly limit application of the short-form warning to a maximum label surface area. OEHHA intended for this warning option to only be used for small products or containers with insufficient space for the longer warning, but businesses have used the short form warning on a wide range of consumer products that have enough label space for the longer warning. OEHHA also is concerned that the short-form warning is allowing companies to place a short-form warning as a means to avoid a Proposition 65 claim even when a business has no knowledge of an exposure to a listed chemical requiring a Proposition 65 warning.

The rulemaking would expressly modify the existing short-form warning provisions as follows:

  • Only allow use of the short-form warning on products with 5 square inches or less of label space.
  • Eliminate use of short-form warnings for internet and catalog warnings.
  • Clarify how short-form warnings can be used for food products.
  • Require that the name of at least one chemical be included in the short-form warning.

Should this proposed change be approved, it will result in significant changes to thousands of consumer products – not only changes to product packaging but on all related websites for products as well. Significant time and resources will be required to identify / confirm specific chemicals of concern in all products to determine what chemical(s) need to be specifically named in the new warnings, and then to make changes to packaging, etc.

Any written comments concerning this proposed regulatory action, regardless of the form or method of transmission, must be received by OEHHA no later than March 8, 2021, the designated close of the written comment period. For more information, please see our client alert recently published here.