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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?

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

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

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!

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