Proposed Amendments to Prop 65’s Warning Requirements

Food and Drug Law at Keller and Heckman

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Proposed Amendments to Prop 65’s Warning Requirements

by: Food and Drug Law at Keller and Heckman of Keller and Heckman LLP - The Daily Intake

Friday, November 3, 2023

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On October 27, California’s Office of Environmental Health Hazard Assessment (OEHHA) proposed amendments to the warning requirements under Proposition 65 (otherwise known as Prop 65 or the Safe Drinking Water and Toxic Enforcement Act of 1986), which, if enacted, would:
- Require short-form warnings to:
  - Name at least one Prop 65-listed chemical per endpoint
  - Be in one of two specified formats (available here)
- Require warnings on products purchased over the internet or from catalogs to:
  - Be included on or with the product when it is delivered to the consumer
  - Be prominently displayed on the product’s display page
- Allow the use of short-form warnings on food products (which is unclear under the current regulations)
- Allow all warnings to use the words “CA WARNING:” or “CALIFORNIA WARNING:” in place of the word “WARNING:” alone (note: using only the word “WARNING:” would still comply with the proposed requirements).
If enacted, consumer products manufactured and labeled with short-form warnings two or more years before the amendments become effective may be sold regardless of when the consumer purchases the product.
OEHHA previously attempted to amend short-form warning requirements, but the rulemaking period expired before the Agency could complete the regulatory process. During this (now expired) rulemaking period, there was much industry opposition, and we anticipate a similar response to this new proposed rule. More information on the previous rulemaking is available here.
The full text of the proposed amendments can be found here. Stakeholders may submit comments until December 20, 2023, and there is a public hearing scheduled for December 13, 2023, at 10:00 am (PST). Keller and Heckman will continue to monitor any revisions or updates to the proposed amendments.