Silicon Valley Law Group Blog
On January 8, 2011, the California Office of Environmental Health Hazard Assessment (OEHHA) issued a notice of proposed rulemaking aimed at amending the regulations governing the short-form warning under Proposition 65. The deadline for submitting comments in response to this notice is March 8, 2021.
In 2016, OEHHA adopted new Article 6 Clear and Reasonable Warning regulations which became operative in August 2018. Among other changes, the regulations provided for a short-form warning which allowed for an abbreviated product warning in certain circumstances. If a company used the short form, it was not required to list the name of the chemical that created the risk. So until now the following warning was sufficient:
WARNING: Cancer and reproductive harm- www.P65Warnings.ca.gov
The unintended effect of the regulation has been the widespread use of the short-form warning on all sorts of products. OEHHA intended that the short-form warning only be used for small products with insufficient space for the complete warning which requires a lengthier explanation and the identification of the chemical posing a risk. Instead, businesses are placing the short-form warning on products of all sizes including large appliances where there is clearly enough space for the full warning. In addition, to avoid lawsuits, businesses have been simply affixing the short-form warning to products even when the business has no knowledge of an exposure to a listed chemical requiring a Prop 65 warning. The proposed regulations are intended to discourage such “over-warning” and to provide more useful information to the consumer.
OEHHA is proposing the following changes to the regulations:
- Use of the short-form warning will be limited to products with 5 square inches or less of label space.
- Elimination of the use of short-form warnings for internet and catalog warnings.
- Clarification of how short-form warnings can be used for food products.
- The addition of a requirement that the name of at least one chemical be included in the short-form warning.
OEHHA has proposed the following as an example of the new requirement:
WARNING: Cancer Risk From Formaldehyde and Reproductive Risk From Toluene Exposure – www.P65Warnings.ca.gov
OEHHA is now accepting public comments on the proposed regulation. SVLG can assist companies in submitting comments to OEHHA.