On June 13, 2024, the California Office of Environmental Health Hazard Assessment (OEHHA) opened a 15 day public comment period (expiring June 28) for interested parties to comment on the State’s proposed changes to regulations that require additional information in future warnings on consumer products that contain chemicals linked to cancer or birth defects.
As background, the California Safe Drinking Water and Toxic Enforcement Act of 1986 (aka “Proposition 65”) requires “clear and reasonable warnings” on consumer products or product packaging containing any of more than 900 chemicals the State has found to increase risks of cancer or birth defects. The State currently provides two generic “short-form” and “long-form” options for regulated parties to follow. These two options are sometimes known as the “safe harbor” options – i.e., if a regulated party utilizes one of these two options verbatim, they will be deemed to be in compliance with Proposition 65.
- The short-form option focuses more on the type of risk outcome (cancer and/or birth defects).
- The long-form option includes everything in the short-form option but also requires naming “at least one chemical” from the cancer and/or birth defects lists. If one chemical happens to be listed in both categories (e.g., lead), then listing that chemical only once would suffice. Not all regulated chemicals need to be listed.
OEHHA now seeks to amend the short-form warning requirements to make them look more like the long-form warning. OEHHA’s critique of the current short-form warning is: “. . . not requiring a specific chemical to be included in the short-form warning has led to its over-use, and many businesses are using the short-form warning prophylactically because it protects from potential litigation.” OEHHA further notes that short-form warnings were originally intended to be used on smaller products, where packaging did not allow for a full-fledged warning. However, they are now on products where a long-form warning would be more appropriate.
OEHHA’s proposed rulemaking in October 2023 amended the California Health and Safety Code to:
- Identify a listed chemical (or two chemicals if the warning is being provided for both cancer and reproductive toxicity, unless the same chemical is listed for both);
- Allow warnings to use additional signal words such as “CA WARNING” and “CALIFORNIA WARNING”;
- Allow the new short-form warnings to be used for food products;
- Require a long or short-form warning on a product / product packaging when it is delivered to a consumer (in addition to the warning on the internet and in a catalog before purchase); and
- Provide a two-year phase-in for the new short-form warnings to be added.
In response to a public hearing and public comments received in January 2024 on a prior iteration of its proposal, OEHHA now amends its October 2023 proposal by:
- Increasing the time for implementation from two years to three years (from the date the regulation becomes effective);
- Reverting to the original regulation text for most of the internet and catalog warning content (e.g., a warning is no longer required when the product is delivered); and
- Including a new provision which would provide internet retailers a 60-day grace period, from when they receive a warning or written notice changing to the new warning content, to update their online short-form warnings during the three-year implementation period.
The public comment period for these recently proposed changes expires June 28, 2024.
Despite these proposed revisions, the new warning requirements will still require significant due diligence on the part of all parties in the chain of commerce to identify what chemicals are in their products as well as to negotiate commercial terms in contracts to allocate responsibilities (and liabilities) related to compliance with this new standard. These changes will pose significant hurdles for all parties, but particularly small and medium sized enterprises that may not have technical capabilities or staff to perform or police compliance.