The California Office of Environmental Health Hazard Assessment (OEHHA) published a notice of modified text on December 13, 2021 to its proposed short-form warning regulations of California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop 65). OEHHA had initially proposed amendments to its short-form warning regulations on January 8, 2021. The December 13, 2021 proposed amendments respond to public comments received including a March 11, 2021 public hearing. A new public comment period for the proposed amendments will run from December 17, 2021 through January 14, 2022.
The proposed new amendments are consistent with OEHHA’s January 8, 2021 proposal’s objectives to: 1) require more specific information in short-form warnings; and 2) limit the use of the safe harbor short-form warning to small products. The proposed new language is identical to the January 8, 2021 rulemaking, with the following exceptions:
- Maximum label size increase to 12 inches: OEHHA originally stated that a short-form warning could only be used if the total surface area of the product label available for consumer information was five square inches or less and the package shape or size could not accommodate a full-length warning. OEHHA has increased the maximum label size for short-form warnings from five square inches to 12 square inches.
- Limited short-form warning use on internet or in catalogs: Earlier OEHHA proposed the elimination of the currently authorized option to use the short-form warning online or in catalogs. The proposed amendments reintroduced this option, allowing for short-form warnings on websites and in catalogs, when the product itself uses a short-form warning.
- Additional warning language options: The proposed amendments would allow alternative language, like “CA WARNING” or “CALIFORNIA WARNING,” to be used for warnings, including short-form warnings.
- Other clarifications on the warning language: The earlier proposal required chemical information to be listed in short-form warnings (i.e., the name of a listed chemical for each exposure pathway) and how short-form warnings should appear if a product contains both carcinogens and reproductive toxicants. OEHHA now is allowing short-form labels to include some modified wording. For example, for exposures to listed carcinogens, the short-form warning could use either of the following:
WARNING: Cancer Risk From [name of chemical] – www.P65Warnings.ca.gov.
WARNING: Exposes you to [name of chemical], a carcinogen – www.P65Warnings.ca.gov.
Despite significant industry push back, OEHHA’s proposed amendments signal the Agency’s strong intent to follow through on its plans to significantly limited the widespread use of Prop 65 short-form warnings. If adopted, businesses will have one year to update their short-form warnings or provide alternative compliant product warnings. OEHHA will consider short-form warnings on products manufactured before the effective date of the proposed amendments as compliant.