California Office of Environmental Health Hazard Assessment’s (OEHHA) is once again attempting to change the Proposition 65 safe harbor warning regulations. OEHHA has twice before attempted to make changes to the short-form warnings. Each time, industry has pushed back, and both attempts to change the regulations were ultimately unsuccessful. On October 27, OEHHA announced a third round of proposed changes.
Proposed changes to the short-form warnings
The proposal includes significant changes to the safe harbor short-form warnings. The proposal would require companies providing the safe harbor short-form warning to identify at least one chemical per endpoint for which the warning is being given. Under the current regulation, the short-form warning must be “in a type size no smaller than the largest type size used for other consumer information.” But the proposal would require the warning be “prominently displayed” and “displayed with such conspicuousness as compared to other words, statements, designs or devices on the label…as to render the warning likely to be seen…,” matching the long-form requirements. The minimum 6-point font size would remain. Short-form warnings would also be allowed for food products, for which there currently is not an approved short-form safe-harbor warning.
Here are some examples of the new short-form warnings being proposed:
- WARNING: Cancer risk from exposure to [name of chemical]. See www.P65Warnings.ca.gov.
- WARNING: Can expose you to [name of chemical], a carcinogen. See www.P65Warnings.ca.gov.
- WARNING: Risk of reproductive harm from exposure to [name of chemical]. See www.P65Warnings.ca.gov.
- WARNING: Can expose you to [name of chemical], a reproductive toxicant. See www.P65Warnings.ca.gov.
- WARNING: Risk of cancer and reproductive harm from exposure to [name of chemical]. See www.P65Warnings.ca.gov.
- WARNING: Can expose you to [name of chemical], a carcinogen and reproductive toxicant. See www.P65Warnings.ca.gov.
New signal words
The proposal also adds more signal word options that can be used for either the long-form or short-form safe harbor warning. In addition to “WARNING,” the regulation would allow for “CA WARNING”or “CALIFORNIA WARNING.”
Changes to internet warnings
OEHHA proposes to add additional options for hyperlinks using the new signal words. The proposed regulation would expressly require that the warning be included on or with the product when it is delivered to the consumer, in addition to the online warning.
Timeline for implementation
The proposed changes would go into effect two years after the effective date. Companies could sell through any products manufactured before that date that have the old safe harbor warnings.
OEHHA contends these changes are necessary because “not requiring a specific chemical to be included in the short-form warning has led to its over-use, and many businesses are using the short-form warning prophylactically because it protects from potential litigation.” OEHHA further argues proposed warnings would provide consumers with “information that can assist them in making informed choices about their exposures to listed chemicals.”
At OEHHA’s public hearing on December 13, all but one commenter opposed the proposals. Several commenters argued that the changes would not address the alleged over-warning problem OEHHA seeks to remedy. Additionally, many challenged OEHHA’s presumption that identifying at least one chemical in the warning provides meaningful or actionable information to consumers. Some argued that the information required in the new short-form warning is too great to fit onto small products. Many commenters also argued that OEHHA significantly underestimates the cost to comply with the new regulations.
If adopted, companies using the safe harbor short-form warnings (whether because they believe they need to give a warning or because they want to avoid receiving a Prop 65 notice) will either need to determine what listed chemical(s) is in their products so they can identify that chemical in the warning, or, as is often the case under the existing regime, identify a chemical that is potentially present in the product in the short-form warning.
Based on our experience, these proposed amendments seem unlikely to change industry’s approach to providing warnings or result in fewer warnings being provided. Whether or not companies must identify a listed chemical in warnings, if they chose not to provide a warning, they are at risk for receiving a 60-day notice. And we did not see a reduction in the use of warnings, or in enforcement, when companies began identifying chemicals in the long-form warning. Unfortunately, the likely reason for “over warning” is industry’s righteous concern over rampant enforcement.
The deadline to submit written comments to OEHHA was extended from December 20 to January 3. Time will tell whether the third time’s a charm for OEHHA. We will provide updates as they become available.