The proposed amendments seek to clarify when short-form product warnings may be used and create new requirements for information about harmful chemicals.
By Michael G. Romey, Lucas I. Quass, and Kevin Homrighausen
Update: On February 19, 2021, OEHHA announced that the public comment period has been extended until March 29, 2021. OEHHA also scheduled a virtual public hearing to discuss the proposed amendments on March 11, 2021, at 10 a.m. PT.
On January 8, 2021, the California Office of Environmental Health Hazard Assessment (OEHHA) proposed amendments to the regulations of California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65 or Prop 65). The proposed amendments seek to clarify the circumstances under which short-form product label warnings are permitted and create new requirements for identification of hazardous chemicals in short-form warnings.
Ambiguity in the 2016 Regulations
In 2016, OEHHA adopted several amendments to the Prop 65 regulations that updated the content of the Prop 65 warning labels that appear on products and included provisions related to short-form warnings when full-sized warnings were not practicable (2016 Regulations). In the Statement of Reasons for the 2016 Regulations, OEHHA explained that short-form warnings should be used on a limited basis to accommodate concerns “that a longer warning message will simply not fit on the labeling or packaging of some small products.” Yet the 2016 Regulations did not include specific limitations on the use of short-form warnings or otherwise require short-form warnings to specifically identify listed chemicals within the product.
The 2016 Regulations were implemented in 2018, and since then, OEHHA has found that the usefulness of short-form warnings has been limited by their generality. Some businesses have been using short-form warnings for products that can easily accommodate a longer warning, while other businesses are using short-form warnings as a prophylactic when warnings may not be required. As a result of these practices, OEHHA now proposes to amend the Prop 65 regulations to clarify the circumstances under which short-form warnings should be used and create new requirements for identification of hazardous chemicals in short-form warnings.
Overview of the Proposed Amendments
Circumstances for use of the short-form warning
Under the proposed amendments, a short-form warning may be used only if (1) the total surface area of the product label available for consumer information is 5 square inches or less and (2) the package shape or size cannot accommodate a full-length warning. For reference, a standard business card is typically around 7 square inches. Consistent with the existing regulations, the warning must be printed in a type size no smaller than the largest type size used for other consumer information on the product but must not otherwise be smaller than a 6-point type. Additionally, because OEHHA acknowledges that webpages and catalogs are not generally subject to space limitations, the proposed amendments state that short-form warnings are inappropriate in those contexts.
Consistent with the 2016 Regulations, the proposed amendments require short-form warnings to include the yellow warning symbol and the word “WARNING.” Additionally, the proposed amendments now require chemical information to be listed in short-form warnings (i.e., the name of a listed chemical for each exposure pathway). The proposed amendments also clarify how short-form warnings should appear if a product contains both carcinogens and reproductive toxicants. Like the 2016 Regulations, if a product contains both a listed carcinogen and a listed reproductive toxicant, a chemical name for each pathway must be included. See below for an example of the change:
Current Short-Form Warning:
WARNING: Cancer and Reproductive Harm – www.P65Warnings.ca.gov.
Proposed Short-Form Warning:
WARNING: Cancer Risk From Formaldehyde and Reproductive Risk From Toluene Exposure – www.P65Warnings.ca.gov.
If the same chemical poses both a cancer risk and a reproductive harm risk, the short-form warning need only reference the chemical once.
The proposed amendments clarify that short-form warnings may be used for food products, a point that was unclear following the 2016 Regulations. The short-form warning requirements for food products have been slightly modified to conform to the existing full-length warning requirements for food exposure. Specifically, the warning symbol is not required, but the warning must be enclosed in a box.
Proposed Short-Form Warning:
If the same chemical poses both a cancer risk and a reproductive harm risk, the short-form warning need only reference the chemical once. For example:
Key Takeaways and Next Steps
The comment period for the proposed amendments extends through March 8, 2021. If the proposed amendments become effective, businesses will have one year to bring their short-form warning practices into compliance. The regulations will become “operative” after this period. Short-form warnings on products manufactured before the operative date of the amendments will continue to be considered compliant with Prop 65 if they follow the 2016 Regulations.
In accordance with the intent of the 2016 Regulations, many businesses have already limited their use of short-form warnings to circumstances in which the product size limits the feasibility of a full-sized warning. However, even these businesses should take note that the proposed amendments require additional information regarding chemicals in products. Businesses that have been using generalized short-form warnings on larger products should note that a full-sized Prop 65 warning will be required anytime a product label available for consumer information is greater than 5 square inches. Here, the language of the proposed amendments creates some ambiguity, however, by allowing a shorter warning only if the product label is less than 5 square inches and otherwise unable to accommodate a full-length warning. Based on this language, a label that is 5 square inches or less would still require a full-length warning if such a label could be accommodated, however, the proposed amendments do not elaborate on when this might be the case. OEHHA may be asked to address this ambiguity during the comment period.
For any questions about how the proposed Prop 65 amendments would alter a product’s warning requirements, please contact one of the authors of this post or the Latham lawyer with whom you usually consult.
 For an overview of the 2016 Regulations, which took effect on August 30, 2018, please refer to Latham & Watkins’ four-part How to Prepare for California’s Updated Prop 65 Regulations blog series.
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