On January 8, 2021, the California Office of Environmental Health Hazard Assessment (OEHHA) issued a notice of proposed rulemaking significantly limiting the use of the short-form warning as a safe harbor. The proposed regulation makes the following changes:
- Limiting the use of the short-form warning to products with 5 square inches or less of label space for consumer information
- Requiring at least one chemical to be identified in the warning
- Eliminating short-form warnings in internet and catalogs
- Clarifying the use of short-form warnings for food, including the use of an offset boxed warning
When OEHHA, the California agency that administers Proposition 65, rewrote the regulations in 2016, it offered two versions of the “safe harbor” warning for consumer products. The basic safe harbor warning was revised to require identification of one or more listed chemicals, lengthy warning language, and a link to an OEHHA website providing more information. In response to concerns about the amount of space this warning required, the agency offered an alternative “short-form” warning that omitted any chemical reference and the lengthy warning language (see our prior blog post for examples of these warnings).
Although OEHHA intended the short-form warning to be used only for products that did not have sufficient label space for the long-form warning, the regulation did not explicitly limit the short-form to such products. Many businesses opted to use the short-form warning on products, particularly where they wanted to provide a warning but did not have certainty as to which chemicals might be present in a product and testing was not feasible or practicable, or if they did not wish to disclose the listed chemical. Short-form warnings are also popular for e-commerce sites, due to the relative ease of implementation as compared to having to manage chemical-specific warnings to numerous products, and catalogs, given space and layout constraints.
According to the Initial Statement of Reasons for the regulation, the primary driver for the changes is that the agency determined that manufacturers are using the short-form warning to avoid litigation, and impairing the purpose of Proposition 65 to inform consumers. According to the agency, “[t]he current short-form warning facilitates . . . ‘over-warning’ by providing businesses with safe harbor protection from enforcement actions without requiring the business to provide sufficient information to consumers.” OEHHA explains the statutorily required “necessity” of the proposed regulation is:
to stop businesses’ use of the short-form warning described above on large packages, in catalogs and on-line to discourage its use to warn prophylactically. Those uses of the short-form warning are contrary to OEHHA’s intention when adopting the 2016 warning regulations that businesses provide consumers with more meaningful and informative warnings, avoid over-warning, and only use the short form warning where the full-length warning will not fit on the label.
New safe harbor requirements for safe harbor short-form warnings
The new proposed warnings are:
WARNING: Cancer risk from [Name of one or more chemicals known to cause cancer] Exposure – www.P65Warnings.ca.gov
WARNING: Risk of Reproductive Harm from [Name of one or more chemicals known to cause reproductive toxicity] Exposure – www.P65Warnings.ca.gov
WARNING: Risk of Cancer and Reproductive Harm from [Name of one or more chemicals known to cause cancer and reproductive toxicity] Exposure – www.P65Warnings.ca.gov
With regard to internet and catalog warnings, the safe harbor would delete the current provision that allows the use of short-form warnings if the product carries such warnings. If the regulation is adopted, internet and catalog warnings will need to be revised to provide the full safe harbor language in order to maintain compliance with the safe harbor (which is not mandatory but often treated by the enforcement community as such).
The current regulation does not explicitly allow for a short-form warning for exposures to chemicals in food. OEHHA has proposed a new short-form warning for food that, like the current safe harbor, does not require the yellow triangle but must be set off from other information and included in a box. The language of the proposed short-form warning for food is otherwise very similar to the one for other products; the only real difference is that the website referred to is “www.P65Warnings.ca.gov/food.”
The proposed regulation will be subject to a public comment period that runs until March 8, 2021. A public hearing will only be scheduled by request, and will be web-based, due to the COVID emergency. Expect vigorous 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.