On January 8, California’s Office of Environmental Health Hazard Assessment (“OEHHA”), a part of California’s Environmental Protection Agency and the “lead agency” for Proposition 65, notified the public that it intended to make some major changes to the California regulations – California Code of Regulations Title 27, §25600 and following – particularly those concerning “safe harbor” short form warnings.
The regulations set out the “safe harbor warnings,” meaning that while these warnings are not mandatory (because any “clear and reasonable warning” is potentially in compliance with Prop 65) if a company complies with the safe harbor warning regulations, no private party enforcer can contend they did not comply with the warning requirements.
The proposed changes are here. Primarily, these proposed changes will substantially change the permitted text and usage of the short form warnings. Right now, those warnings can be used for any product and any chemical, and must be in a minimum six point font and a font no smaller than other “consumer information,” which is not well-defined in the regulations. The text and appearance can be any of the following:
Pursuant to the new proposal, § 25602(a)(4) will be revised to provide as follows:
The short-form warning may only be used if:
(A) The total surface area of the product label available for consumer information is 5 square inches or less, and;
(B) the package shape or size cannot accommodate the full-length warning described in Section 25603(a), and;
(C) The entire warning is printed in a type size no smaller than the largest type size used for other consumer information on the product. In no case shall the warning appear in a type size smaller than 6-point type.
Even more significantly, the permitted text is revised in the proposed revisions to §25603(b), as follows:
(b) A short-form warning may be provided on the product label . . . using all the following elements:
(1) The symbol required in subsection (a)(1) [The exclamation point in the yellow triangle].
(2) The word “WARNING:” in all capital letters, in bold print.
(A) For exposures to listed carcinogens, the words, “Cancer Risk From [Name of one or more chemicals known to cause cancer] Exposure - www.P65Warnings.ca.gov”
(B) For exposures to listed reproductive toxicants, the words, ” “Risk of Reproductive Harm From [Name of one or more chemicals known to cause reproductive toxicity] Exposure - www.P65Warnings.ca.gov”
(C) For exposures to both listed carcinogens and reproductive toxicants, the words, “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”
(D) For exposures to a chemical that is listed as both a carcinogen and a reproductive toxicant, the words, “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”.
The new revisions (at §25607(a)) require the same revisions to short form warnings as to food, ending, as now, with the URL www.P65Warnings.ca.gov/food. The revisions also require that “The warning must be set off from other surrounding information and enclosed in a box.
These are major changes: The new regulations will severely limit the locations and uses of the short form warnings, and require the identification of the chemicals in question.
Another big set of changes is this: pursuant to §§ 25602(b) and (c), Internet and Catalog warnings are still required to meet the safe harbor warning requirements, but only the long warnings – not the short warnings – will meet these requirements.
When or if this will take effect remains to be seen. OEHHA has authorized comments to be submitted until March 8, 2021, with the deadline and submission methods set forth here. After approval by OEHHA, if that happens, it will be submitted to the California Office of Administrative Law for review and approval. That can be a really long process some times. And as drafted, the OAL is asked to select an operative date one year after OEHHA approves the amendments. And the regulations provide that the changed provisions will take place on the operative date selected by OAL, with products manufactured before that date governed by the earlier regulations passed in 2016 and effective July, 2018.
We will be closely watching what happens with OEHHA and the OAL, and provide further reports.
