On May 20, 2022, the agency governing Proposition 65, the California Office of Environmental Health Hazard Assessment (OEHHA), announced that it was allowing the rulemaking process for proposed modifications to the Prop. 65 short-form warnings to lapse because OEHHA was unable to complete the rulemaking process in the permitted time under California law. OEHHA has stated that it intends to restart the rulemaking process on the short-form warnings with a new regulatory proposal in the next several weeks.  

While OEHHA has not announced what changes the new proposal will include, history tells us it is likely that the new proposal will include a requirement that companies identify at least one listed chemical in the short-form warning – a drastic departure from the current short-form warning.

History of the Prop. 65 Short-Form Warnings 

Proposition 65 requires businesses to provide clear and reasonable warnings to California consumers about significant exposures to chemicals that cause cancer, congenital disabilities, or other reproductive harm. Exposures commonly occur through the use of consumer products, such as personal care products, apparel, and cosmetics, among other products. Proposition 65 requires California to publish a list of chemicals that are known to cause cancer, congenital disabilities, or other reproductive harm. 

In August of 2018, major changes to Proposition 65 went into effect, allowing businesses the flexibility to use a short-form warning under specified circumstances. This was in response to several companies raising concern that long-form safe-harbor warnings would not fit on small products or containers. 

Amendments to Short-Form Warnings 

As we reported in our April 8, 2022 alert, on January 8, 2021, OEHHA proposed original amendments to the short-form warnings expressing concern that the short-form warnings had been overused by companies. As a result, the original proposed amendments represented several restrictions on the use of short-form warnings, such as: requiring identification of at least one listed chemical; limiting the use of short-form warnings only when the surface area of the product’s label was less than 5 square inches; and prohibiting short-form warnings for Internet or catalog purchases, just to name a few. 

Following consideration of further comments and opposition by stakeholders to the original proposed amendments, OEHHA issued modifications to its original proposed amendments on December 17, 2021. The first proposed modifications dialed back many restrictions originally proposed in January 2021, such as: expanding the minimum label size from 5 to 12 square inches; reinstating the use of short-form warnings for Internet and Catalog purchases, and including the option for businesses to include “CA WARNING” or “CALIFORNIA WARNING” on the label to make it clear warnings are given pursuant to California law. 

OEHHA issued the second proposed amendment to the short-form warnings on April 5, 2022, after considering additional comments. This further reduced the restrictions introduced by the original proposed amendments. For example, the revised proposal removed the label size limitations, removed font size requirements, and expanded the implementation period of the short-form warnings amendments from one to two years after the effective date of the amendments. 

While the subsequent proposed changes would reduce the burden of compliance for companies, the proposals consistently required the identification of a specific chemical on the warning, a point of contention for many businesses. 

The Rulemaking Period Has Lapsed 

The proposed rulemaking to amend the short-form warnings regulation was initially noticed in January 2021. Such rulemaking must be completed within one year of the date it was first noticed to the public. Due to the COVID-19 pandemic, this one-year period was temporarily extended by an Executive Order. Despite having additional time, OEHHA was unable to complete the regulatory process in the allotted time, and rulemaking has therefore lapsed. 

OEHHA intends to restart the rulemaking process on the short-form warnings with a new regulatory proposal in the next several weeks. This will be informed by comments on the previous proposal. As with the previous amendments, there will be notice and an opportunity to submit comments. 

Takeaways 

• If OEHHA’s previously proposed amendments to the short-form warnings are included in the new regulatory proposal, they will require companies selling consumer products in California to determine, from testing or otherwise, whether any of the products contain one or more listed chemicals so that they can satisfy the proposed requirement that the short-form warning identifies at least one listed chemical. 

• OEHHA has demonstrated that it meaningfully considers comments raised by companies and other stakeholders in response to its proposed amendments. Businesses should stay tuned for the new regulatory proposal and submit comments to OEHHA during the upcoming comment period.

• Being proactive to ensure compliance with Proposition 65 is key to reducing risk and potential liability. A Proposition 65 compliance plan is an effective way to achieve these goals. 

We will continue to monitor all developments with the new proposal to the short-form warnings under Proposition 65 and publish updates as developments become available.