U.S. – OEHHA Proposed Amendments to Prop 65 Short-form Warnings

Vol. 1215 | 19 Jan 2021

On January 8, 2021, the California Office of Environmental Health Hazard Assessment (OEHHA) proposed amending Article 6 Clear and Reasonable Warnings. The safe harbor warning methods and content in Article 6 are deemed by OEHHA to be clear and reasonable for Proposition 65 (Prop 65), and provide a “safe harbor” against enforcement actions for businesses that choose to use them.

OEHHA adopted new Article 6 Clear and Reasonable Warnings regulations in 2016, which became operative in August 2018. This included provisions for a short-form warning in response to concerns about the amount of space this warning required. However, the regulation did not explicitly limit the use of short-form to such products.

OEHHA noted that there has been widespread use of short-form warnings in ways that were not intended and do not further the purposes of Proposition 65. In addition, many businesses are also seeking clarification as to whether the short-form warning could be used to provide safe harbor warnings for food products, and for additional guidance on the safe harbor warning content for short-form food warnings. Therefore, OEHHA determined that further amendments of certain sections of Article 6 are necessary.

Following are proposed amendments:

1. Short-form warning
   1. Limit the use of the short-form warning
      The short-form warning may be used only if the products with a total surface area available for consumer information is 5 square inches or less, or the package shape or size cannot accommodate a full warning.
   2. Require including at least one chemical per toxicity end-point in the warning
      The proposed short-form warning for products containing listed carcinogens:
       WARNING: Cancer risk from [Name of one or more chemicals known to cause cancer] Exposure – www.P65Warnings.ca.gov 
      
      The proposed short-form warning for products containing listed reproductive toxicant:
       WARNING: Risk of Reproductive Harm from [Name of one or more chemicals known to cause reproductive toxicity] Exposure – www.P65Warnings.ca.gov 
      
      The proposed short-form warning for products containing both carcinogen and reproductive toxicants:
      WARNING: Risk of Cancer From [Name of one or more chemicals known to cause cancer] And Reproductive Harm From [Name of one or more chemicals known to cause reproductive toxicity] Exposure - www.P65Warnings.ca.gov”
      
      The proposed short-form warning for products containing listed as both carcinogen and reproductive toxicants:
      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
      
      
   3. Prohibit the use of short-form warning on the internet and in catalogs.
2. Use of short-form warning for food:
   Clarifies that the use of short-form warnings is permitted for food.

OEHHA has proposed that the regulation become operative one year after the effective date of the amendments. Any product that is manufactured after one year will require use of amended short-form warning to be deemed clear and reasonable per Article 6. Products manufactured within that one-year window and that carry the current short-form warning may be sold through indefinitely.

Notice of Proposed Rulemaking can be reviewed at: https://oehha.ca.gov/proposition-65/crnr/notice-proposed-rulemaking-amendments-article-6-clear-and-reasonable-warnings-0

OEHHA is currently accepting written comments concerning this proposed regulatory action. Any written comment must be received no later than March 8, 2021. Comments may be submitted electronically through OEHHA’s website at https://oehha.ca.gov/comments.  

For questions, please contact Dr. Stella Li (xingyu.li@intertek.com, +1- 503-351-9612), Dr. Pratik Ichhaporia (pratik.ichhaporia@intertek.com, +1-847-212-8273).