In the latest twist in California’s never-ending saga to amend the Proposition 65 “short-form” warning regulation, there’s now been a second proposed change. The California Office of Environmental Health Hazard Assessment (OEHHA) has been for some time attempting to limit the use of short form warnings, although encountering significant push back and concerns from the industry.
On April 5, 2022, OEHHA published its second revised proposed regulation for short-form Proposition 65 safe harbor warnings. We previously summarized the original and the first revised proposed regulation. The original proposal substantially restricted the circumstances in which businesses could use the short-form warning, prohibited them in catalogs and websites, and introduced the requirement to specifically identify listed chemicals in such warnings. OEHHA relaxed the restrictions in its first amended proposal. Following comments on the amended proposal, it issued a revised amended proposal that makes several additional changes in response to continuing concerns from the industry:
- Removing any limitation for the size of the label (which was originally proposed to be less than 5 square inches, and amended to be less than 12 square inches);
- Removing the requirement to match the font size to other consumer information on the product;
- Changing the language of the warning from “exposes you to” to “can expose you to”; and
- Extending the grace period to comply from one year to two years.
The most significant of the changes was the removal of any size limitation on the labeling for which short-form warnings can be given. OEHHA’s original proposal was based on the assumption that products with more room to provide warnings should provide the full safe harbor warning (examples it gave included household appliances). Now, assuming the latest proposed amendments are adopted, products of any size may use the short-form warning.
The comment period on the recent amendments closed on April 20, 2022. It appears likely that OEHHA will not make further revisions and proceed to finalization of the regulation and submission to the California Office of Administrative Law. If approved, the regulation will likely go into effect this summer, and the two-year grace period for the prior warning will extend to summer 2024.