The proposal had contemplated clarifications to when short-form warnings should be used and had aimed to introduce new requirements for information about harmful chemicals.
By Michael Romey, Christopher Martinez, and Lucas Quass
Several amendments that the California Office of Environmental Health Hazard Assessment (OEHHA) had proposed to rules on short-form product warnings failed to move forward because OEHHA was unable to advance the rulemaking process within the legally allotted period.
In 2016, OEHHA adopted amendments to the Prop. 65 regulations that updated the content of the California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65 or Prop. 65) warning labels that appear on products, and included provisions on short-form warnings when full-sized warnings were not practicable. 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.
As Latham previously reported, in January 2021, OEHHA proposed new limits on the use of Prop. 65 short-form warning labels. OEHHA proposal sought to require more specific information in short-form warnings and to limit the use of the safe harbor short-form warning to small products.
OEHHA had initially proposed amendments to its short-form warning regulations on January 8, 2021, which initiated a public comment period that ran through March 29, 2021. OEHHA provided a Notification of Modification of Text on December 17, 2021, which reflected feedback from the public comment period and also initiated a new public comment period. This subsequent comment period was extended to, and closed on, January 21, 2022. After reviewing the comments on the first modifications, OEHHA further modified the proposed regulatory text and released it for public comment on April 5, 2022. The comment period closed on April 20, 2022.
Under the California Administrative Procedures Act, OEHHA is required to complete the rulemaking process within one year from the date of the first public notice. This one-year window was temporarily extended by an Executive Order due to the COVID-19 pandemic. However, OEHHA was unable to advance the rulemaking process within the allotted time and, accordingly, the rulemaking has lapsed.
OEHHA is expected to restart the rulemaking process on short-form warning regulations, reflecting public comments on the previous proposals, in the next several weeks.
For any questions about Prop. 65 or 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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