OEHHA Deliberating Amendments to California’s Proposition 65 Regulations

On January 8, 2021, California’s Office of Environmental Health Hazard Assessment (OEHHA) released proposed amendments to Article 6 of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65). The proposed amendments are intended to address the OEHHA’s concerns over the current use of short-form warnings for consumer products and to provide clarification regarding the use of short-form warnings on food products.

What are OEHHA’s concerns with the current short-form warnings?

The OEHHA has identified three main concerns with the current use of short-form warnings which violate the regulation’s intent to provide meaningful information to consumers about exposure to listed chemicals.

First, the current regulations do not require businesses to identify the chemical or chemicals that trigger the warning when using the short-form warning. This severely limits the usefulness of the warning since consumers are not given the information they need to further investigate the exposure risk to the endpoint given in the warning.

Second, the current regulations do not specify the size of package for which the use of a short-form warning is warranted, so businesses are using the short-form warning on products and labels that could easily accommodate the full warning. This again limits the usefulness of the warning by not identifying the chemicals that pose the exposure risk.

Lastly, since the current regulations do not require the short-form warning to specifically identify any chemicals, businesses are prophylactically labelling their products with the short-form warning to avoid potential litigation, even if said product does not contain any listed chemicals. This over-warning further negates the purpose of the regulation to provide meaningful information.

What are the key changes in the proposed amendments?

  • The new regulations would provide clarification as to when the short-form warning can be used, namely:
    • If the total surface area available for labelling is 5 square inches or less, or;
    • If the size or shape of the package cannot accommodate the full warning per Section 25603(a), or;
    • If the entire warning is printed in a type size no smaller than the largest type size used for other consumer information on the label but no smaller than 6 point font.
  • The new regulations would revise the content required in the short-form warning so that at least one chemical for each applicable endpoint must be identified, and to include the words “risk” and “exposure” to provide more precision than listing the endpoint alone.

For example, the short form warning under the new regulation would look like:

as opposed to the short-form warning under the current regulations:

  • Short-form warnings would no longer be permitted for use in internet or catalogue purchases.
  • Short-form warnings may be used for food products with the appropriate modifications to comply with the existing full-length warning requirements (i.e., the warning symbol is not required for foods, but the warning must be enclosed in a box) and are subject to the same requirements as consumer products regarding the size/shape of a package for which a short-form warning can be used, and the inclusion of the chemical identity and the words “risk” and “exposure”:

How much time would I have to update my labels?

The proposed amendments allow for a phase-in period of one year from the date of implementation, plus an unlimited sell-through period for products that had compliant labels when they were manufactured.

The full text of the proposed regulations can be found here. A public hearing was held on March 11, 2021 and the public comment period will close March 29, 2021. When available, the Final Statement of Reasons will be available at www.oehha.ca.gov or by contacting the OEHHA.

To ensure your product is compliant under the current Proposition 65 regulations and for any inquiries regarding the proposed amendments, Contact Nexreg today!