As we reported this past year, the California Office of Environmental Health Hazard Assessment (OEHHA) seeks to significantly amend the regulations under the Safe Drinking Water and Toxic Enforcement Act of 1986 (aka “Proposition 65”) to limit use of the previous State-approved “safe harbor” short-form warnings for regulated chemicals in consumer products.  The State announced on December 13, 2021 further amendments to the proposed regulations, but generally continues to propose that use of the current “short form” safe harbor warning be dramatically scaled back, which will impact thousands of consumer products by requiring more specificity in future warning language.

As background, current California law allows a manufacturer, distributor or retailer of a consumer product to place either a “long form” or “short form” warning on the product or product packaging if one or more of 900+ regulated chemicals is in the product.  The long form warning identifies by name “at least one” chemical from each regulated chemical risk category (i.e., carcinogens or reproductive toxicants).  The short form alternate warning only requires identification of the risk category (ies) – not particular chemicals.

After reviewing over 160 written and oral comments on a prior proposed version of the regulations, OEHHA modified the proposed regulation again to:

  • Only allow the short form warning on products / product packaging with less than twelve square inches of surface space (and where the package shape / size cannot accommodate the long-form warning);
  • allow use of the short-form warning on the internet or in catalogs only where the short form warning is used on the product label;
  • allow the additional signal word options “CA WARNING” or “CALIFORNIA WARNING;” (in addition to the current signal word “WARNING” on internet sites (to show that this is a warning for California customers only;
  • provide additional warning language options that more directly address exposure to carcinogens or reproductive toxicants. As we reported at the beginning of the year, OEHHA sought to modify the rule to require that the name of at least one chemical be included in the short form warning, unlike the current warning which only requires the listing of risk categories. OEHHA has now proposed modifying that requirement further by adding an additional safe harbor option. However, the proposed modification still mandates that the short form warnings list at least one chemical by name, so thousands of consumer products will still need more specified warning language; and
  • provide minor clarifications on the wording of the warning by removing in several sections the word “product” from the proposed term “product label”. The existing term “label” remains. Some commenters stated that the phrase “product label” was undefined and confusing. Since OEHHA had no intention of changing the meaning, the original term was retained.

These proposed changes are summarized here. As previously discussed, the proposed modifications will result in significant changes to thousands of consumer product warnings – not only changes to product packaging but on all related websites for products as well.

OEHHA requests written comments on these modifications (and their impacts on regulated parties) no later than January 14, 2022.