California Fiddles with Prop 65 Short-Form Warnings
Whether Nero actually fiddled while Rome burned is historically questionable, though it was undoubtedly true that the mad emperor focused on the trivial during a time of emergency. California leaves no such room for historians to quibble as the Office of Environmental Health Hazard Assessment (OEHHA) takes a third stab in recent years at tinkering with the “short form” warning provisions of Prop 65, justifying the effort in part by asserting that “[n]ot requiring a specific chemical to be included in the short-form warning has led to its over-use, and many businesses are using the short-form warning prophylactically because it protects from potential litigation.” Meanwhile, the true cause of “over-warning” is continually ignored by OEHHA: the ridiculous ease of bringing a Prop 65 notice of violation and forcing companies into expensive litigation, even when, in many cases, no such warning was required. (A topic about which we have a lot more to say, most recently with this blog post).
Generally speaking, Prop 65 requires businesses to provide a warning to consumers before they sell a product in California that can cause an exposure to a listed chemical. A widely used option for satisfying Prop 65 chemical warning requirements, the so-called “safe harbor” short-form warning, was initially introduced in the 2016 amendments to Prop 65 as a means for compliance for products with limited label space. The reporting method gained popularity not only for its brevity but also because the current short-form warnings do not mandate identification of a specific chemical.While we still await meaningful Prop 65 reform, OEHHA has initiated yet another rulemaking to amend the Prop 65 “safe harbor” short-form warning provisions, including a new requirement to specify at least one chemical for which the warning is given.
In addition, OEHHA proposes:
• Allowing use of the words “CA WARNING:” or “CALIFORNIA WARNING:” in place of the word “WARNING:” at the beginning of the Prop 65 statement.
• For internet purchases, the Prop 65 warning would be required to be delivered either: on the product display page; with a clearly marked hyperlink on the product display page containing the word “WARNING”, “CA WARNING” or “CALIFORNIA WARNING” that links to the warning; or otherwise prominently displayed on the website in a manner that does not require consumers to “search” for the warning. Moreover, internet purchases would still require the product itself to be labeled in accordance with Prop 65 requirements (or short-form requirements mentioned above) when delivered to the consumer.
• Clarify that warnings for catalogue purchases must appear both in the catalogue and accompany the product when delivered to the consumer.
• Clarify that the short-form warning is available for food products (which was previously ambiguous)
• New specifically-tailored safe harbor warnings for passenger or off-highway motor vehicle parts and recreational marine vessel parts.
OEHHA is accepting public comments on the rulemaking through December 20, 2023. OEHHA will also host a public hearing on December 13, 2023 at 10:00 a.m. (PST) at the CalEPA Headquarters. It can also be accessed remotely. More information will be posted on OEHHA’s website prior to the hearing.
More information on the rulemaking initiative can be found on OEHHA’s website here. The proposed regulatory text can be found here.