California OEHHA Withdraws Proposed Changes to Prop. 65 Short-form Warnings

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California’s Office of Environmental Health Hazard Assessment (OEHHA) has withdrawn its proposed changes to Proposition 65 (Prop. 65) short-form warnings because it was unable to complete amendments prior to its deadline. They agency has stated that it will issue another modified proposal considering comments it received.

ACA had opposed the amendments as unnecessary, costly, and not adequately justified.

On April 5, 2022, California’s Office of Environmental Health Hazard Assessment (OEHHA) opened a 15-day comment period on revisions to proposed amendments to Prop 65 short-form warnings. OEHHA initially proposed amendments in January 2021. Based on comment in opposition from a diverse set of stakeholders, OEHHA revised its proposal in December 2021. OEHHA made another revision to its proposal in April 2022. The April 2022 amendments would have allowed for use of the short-form warning on all containers, regardless of size or shape, eliminating size restrictions from prior proposals. In the April 2022 modified proposal, OEHHA maintained the proposal to require identification of at least one listed chemical in the short-form warning.

As of the final April 2022 proposed amendment, OEHHA’s modifications to its proposed amendment to Prop. 65 short form warnings were as follows:

  • Short-form warning can be used on any package, regardless of size and shape.
  • OEHHA removed the requirement that the warning type size must be the same as the largest font size used to convey consumer information.
  • OEHHA maintains existing requirement for a minimum of a 6-point font size.
  • Compliance date would be two years from the effective date, with unlimited sell-through for products manufactured prior to the compliance date and labelled according to the Aug. 2016 amendments.
  • OEHHA modified proposed short-form warning from “Exposes you to X” to “Can expose you to X.”

Under Prop 65, individuals must provide warnings prior to exposure to a chemical identified by the State of California to cause cancer or reproductive harm. The Prop 65 duty to warn applies to companies at varying levels in the supply chain, including product manufacturers, employers and individuals causing exposures in an affected area. Prop 65 requires the State of California maintain a list of chemicals that are known to the State to cause cancer, birth defects or other reproductive harm, or both. The Prop 65 list includes over 900 chemicals since it was published in 1987.

OEHHA initially proposed this rule due to concerns that the short-form warning is currently being over-used on products with packaging large enough to accommodate a full-length warning. The agency notes that the Prop 65 short-form warning is often included on products even when a manufacturer has no knowledge of a listed chemical in the product, although OEHHA provides no data or studies describing the scope and cause of this alleged problem.

ACA believes that identification of a listed chemical in the short-form warning is unnecessary for formulated products, since manufacturers include hazard statements, warnings and instructions about how to use the product safely.

In comments submitted to OEHHA on April 20, 2022, ACA noted that products that comply with OSHA and/or FHSA labeling should be exempt from the requirement to identify a listed chemical in the short form warning. ACA also encouraged OEHHA to modify its proposed short-form language to note that the product “Contains X,” rather than “Can expose you to X.”

Contact ACA’s Riaz Zaman for more information.

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