Almost a year after initially proposing revisions that would substantially curtail use of the popular “short form” warnings under Proposition 65 (see my prior blog post for more details), the California Office of Environmental Health Hazard Assessment (OEHHA) has issued a modified proposal and requested public comment by January 14, 2022. [UPDATE: OEHHA subsequently extended the comment period to January 21st.] The modifications, which slightly scale back the initially proposed restrictions but would continue to dramatically limit use of the short form warning, include:
- Setting the maximum label size for short form warnings at 12 square inches (an increase from the originally proposed 5 square inches). OEHHA contends that the change addresses concerns that the original proposed limit was too small to be meaningful and that “a 12 square inch limit would accommodate these concerns, while still limiting use of the short-form warnings to packages with limited available label space for consumer product information that would not easily accommodate the full warning.”
- Removing the originally proposed prohibition on use of the short form in online warnings or catalogs. Accordingly, the current regulatory language allowing on-line and catalog use of the short form warning for products that have the short form warning on package would remain in place. This shift responds to concerns about having “varying warning language for the same products,” as well as the possibility of potential retailer liability for providing the incorrect warning language.
- Adding new signal word options “CA WARNING” or “CALIFORNIA WARNING” in lieu of the generic “WARNING” phrase at the start of the warning text. This shift follows an increasing trend in companies providing warning statements by referring to the California program explicitly in an effort to make clear to consumers that the warning is a product of California law (which may, perhaps, signal to sentient human beings that the warning is rooted in an oddball requirement coming out of the “Left Coast”; though, while a nod towards reality, not likely OEHHA’s intended purpose).
- Including more warning options that “more directly address exposure to carcinogens or reproductive toxicants to provide an additional safe harbor warning that can be used on the product label.” Currently, short form warnings look like:
WARNING: Cancer and Reproductive Harm – www.P65Warnings.ca.gov
If finalized, the new short form warnings options would include:
WARNING [OR CA WARNING OR CALIFORNIA WARNING]: Risk of Cancer [and/or Reproductive Harm] From [Name of one or more chemicals known to cause cancer and reproductive toxicity] Exposure – www.P65Warnings.ca.gov
WARNING [OR CA WARNING OR CALIFORNIA WARNING]: Risk of Cancer [and/or Reproductive Harm] from exposure to [Name of one or more chemicals known to cause cancer and reproductive toxicity] — www.P65Warnings.ca.gov
WARNING [OR CA WARNING OR CALIFORNIA WARNING]: Exposes you to [Name of one or more chemicals known to cause cancer and reproductive toxicity], a [carcinogen/reproductive toxin] — www.P65Warnings.ca.gov
A copy of the proposed revised regulation and OEHHA’s explanatory notice are available at: Notice of Modification to Text of Proposed Regulation Title 27, California Code of Regulations Proposed Amendments to Article 6 Clear and Reasonable Warnings – Short Form – OEHHA.