California OEHHA Pauses Abbreviated Prop 65 Warning Changes

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On May 20, 2022, the agency governing Proposition 65, the California Office of Environmental Health Hazard Assessment (OEHHA), announced that it was allowing the rules-making process to expire for the proposed changes to the abbreviated warnings from Prop. 65 because the OEHHA was unable to complete the rulemaking process within the time allowed by California law. The OEHHA said it intends to restart the abbreviated warning rulemaking process with a new rule proposal in the coming weeks.

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

History of abbreviated warnings of Prop. 65

Proposition 65 requires companies to provide clear and reasonable warnings to California consumers about significant exposures to chemicals that cause cancer, birth defects or other reproductive harm. Exposures typically occur through the use of consumer products, such as personal care products, clothing, and cosmetics, among other products. Proposition 65 requires California to publish a list of chemicals known to cause cancer, birth defects or other reproductive harm.

In August 2018, major changes to Proposition 65 came into effect, allowing companies to use an abbreviated warning in specific circumstances. This was in response to several companies who were concerned that detailed safety warnings would not stick on small products or containers.

Changes to Abbreviated Warnings

As we reported in our April 8, 2022 alert, on January 8, 2021, the OEHHA proposed original changes to the abbreviated warnings over concerns that abbreviated warnings have been overused by businesses. Therefore, the originally proposed amendments represented several restrictions on the use of abbreviated warnings, such as: requiring the identification of at least one listed chemical; limit the use of abbreviated warnings only when the area of ​​the product label was less than 5 square inches; and prohibiting abbreviated disclaimers for internet or catalog purchases, to name a few.

Following consideration of other comments and stakeholder opposition to the original Proposed Changes, the OEHHA published changes to its original Proposed Changes on December 17, 2021. The first Proposed Changes recalled many restrictions originally proposed in January 2021, such as: extending the minimum label size from 5 to 12 square inches; reinstate the use of abbreviated warnings for Internet and catalog purchases, and include the option for companies to include “CA WARNING” or “CALIFORNIA WARNING” on the label to clearly indicate that warnings are given in accordance with California law.

The OEHHA published the proposed second amendment to abbreviated warnings on April 5, 2022, after considering additional comments. This further reduced the restrictions introduced by the originally proposed changes. For example, the revised proposal removed label size limits, removed font size requirements, and extended the implementation period for abbreviated warning changes from one to two years after the effective date. modifications.

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

The regulatory period has expired

The proposed regulations to amend the Abbreviated Warnings Regulations were originally notified in January 2021. These regulations must be completed within one year from the date they were first notified to the public. Due to the COVID-19 pandemic, this one-year period has been temporarily extended by executive order. Despite the additional time, the OEHHA was unable to complete the regulatory process within the allotted time, and therefore rulemaking lapsed.

The OEHHA intends to restart the abbreviated warning rulemaking process with a new rulemaking proposal in the coming weeks. This will be informed by comments on the previous proposal. As with previous changes, there will be notice and an opportunity to submit comments.

Take away food

  • If OEHHA’s previously proposed changes to abbreviated 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 than one listed chemical so that they can meet the proposed requirement that the abbreviated warning must identify at least one listed chemical.

  • The OEHHA has demonstrated that it meaningfully considers comments raised by businesses and other stakeholders in response to its proposed changes. Companies should stay tuned for the new regulatory proposal and submit their comments to the OEHHA during the next comment period.

  • Being proactive in ensuring Proposition 65 compliance 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 Abbreviated Warnings Proposal under Proposition 65 and post updates as developments become available.

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