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The California Office of Environment Health Hazard Assessment (OEHHA) proposed restrictions on the use of short-form Prop 65 warning labels

February 10, 2021  /  CPTS QA

On January 8, 2021, the OEHHA promulgated a notice of proposed rulemaking to amend Article 6 of Title 27 of the California Code of Regulations. If enforced, the amendments may create a new compliance obligation to businesses selling products to consumers in the state of California by significantly limiting the use of short-form safe harbor warnings.
Public written comment period: until March 8, 2021

In 2016, new Article 6 Clear and Reasonable Warning regulations were adopted by OEHHA which included provisions for a short-form Prop 65 warning. However, as less label space was required and the identification of a specific Prop 65 listed chemical could be avoided, the short-form could be utilized in ways that went against the intention and purpose.

Since less information is provided to the consumer by the short-form warning, the January 8 proposal would restrict its use by suggesting various changes, including:

  • Limiting the use of the short-form warning for consumer information to products with 5 square inches or less of label space available (and where the package shape or size cannot accommodate the full-length warning). The requirement of type size of the warning remains unchanged (i.e., type size no smaller than “the largest type size used for other consumer information on the product” and no smaller than 6-point type)

  • Requiring identification of at least one Prop 65 listed chemical in the warning for which the warning is being provided

  • Prohibiting the short-form warning listed for internet purchases and catalog purchases even when the warning provided on the product itself is in compliance with the regulation

  • Including the words “Risk” and “Exposure” in the warning

  • Clarifying the use of short-form warnings for food including the use of an offset boxed warning

    • A short-form warning for exposures to chemicals in food is not clearly allowed in the current regulation. OEHHA has therefore proposed a new short-form warning be included for food of which the language is very similar to the one for other products.

Under the proposal, the new warning would be more detailed, providing more information.

Below is an example warning statement when the product requires a warning from both toxicity endpoints (carcinogen and reproductive toxicant):

“WARNING: Cancer Risk from [insert chemical name] and Reproductive Risk from [insert chemical name] Exposure – www.P65Warnings.ca.gov.”

The proposed amendments will be subject to a public written comment period that runs until March 8, 2021. A web-based public hearing will be scheduled, only upon request. Considering a strong opposition from the business community, OEHHA has proposed that the regulation become operative one year after the effective date of the amendments. Any products that are manufactured within that one-year window and that carry the current short-form warning may be sold through indefinitely. As a result, the new regulations would not apply to products manufactured prior to the enforcement date of the regulations.

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