On October 27, 2023, the Office of Environmental Health Hazard Assessment (OEHHA), the lead California regulatory agency tasked with implementing California's Proposition 65, proposed significant changes to the Proposition 65 warning requirements that may impact businesses' Proposition 65 compliance strategy. In particular, OEHHA is once again considering changes to the "short-form warnings," as well as other provisions, on which the regulated community heavily relies.
Proposition 65, officially referred to as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses with 10 or more employees to provide a "clear and reasonable" warning before exposing individuals in California to any listed chemical that may cause cancer or reproductive harm.
Regulations adopted in August 2016, and effective on August 30, 2018, provided certain revised "safe harbor" provisions, which set forth specific warning language and methods of transmission that businesses can use to ensure compliance with Proposition 65. For the first time since the inception of Proposition 65, businesses were required to list at least one chemical for which a warning was required and identify one or both "endpoints" implicated (cancer and/or reproductive harm). For on-product labels, however, the regulations allowed businesses to use a "short-form" warning that did not identify any chemicals. Short-form warnings were allowed irrespective of product size. For this reason, many businesses rely on the short-form warning as a large part of their compliance strategy.
In 2021, OEHHA proposed changes to the short-form warning requirements that would essentially eliminate many of the benefits to businesses by requiring, among other things, listing of at least one Proposition 65 chemical for each exposure pathway (i.e., cancer or reproductive risk). As can be expected, the regulated community pushed back on this proposed change. In May 2022, OEHHA announced that it would allow the rulemaking to lapse. Although OEHHA stated that it was going to propose new rules, OEHHA had not taken any further action until now.
OEHHA once again proposes the short-form warning requirements be amended to require identification of a specific chemical for which the warning is being given irrespective of packaging/product size to "make the Proposition-65 warning more informative to consumers." With this rulemaking, OEHHA also (1) clarifies the existing safe harbor warning requirements for products sold on the internet and in catalogs such as specifying that a warning must still be included with the delivered product; (2) amends the warning options for food warnings including clarifying that short-form warnings may be used to provide safe harbor warnings for food products; and (3) provides a new tailored safe harbor warning for passenger or off-highway motor vehicle parts and recreational marine vessel parts.
Businesses that currently rely on short-form warnings should be aware of these proposed changes to ensure sufficient time to revise warnings should OEHHA adopt the proposals. Noncompliance penalties can be steep – up to $2,500 per day for each violation (with a "violation" typically considered a California sale). Non-compliant businesses may face enforcement actions, penalties, and attorney fees..
OEHHA will be holding a public hearing on these proposed amendments on December 13, 2023. Public comments concerning OEHHA's proposed action must be received by OEHHA by December 20, 2023. As currently proposed, if the amendment is adopted, businesses will have two years after the effective date of the amendment to comply with the new short-form warning requirements.
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