On January 8, 2021, the California Office of Environmental Health Hazard Assessment ("OEHHA") proposed to amend the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65 ("Prop 65"). In 2016, OEHHA adopted new Article 6 Clear and Reasonable Warnings regulations, providing manufacturers with a "short-form" warning alternative that did not require manufacturers to identify any chemicals on their respective labels. Although it may have been OEHHA's intention that short-form warnings were to be used only on products with limited label space, Prop 65 allowed manufacturers to use short-form warnings on all products, regardless of label size. The proposed amendments to the Prop 65 warning are an attempt to provide clarification to businesses that have made inquiries concerning the Article 6 labeling requirements, and to explain whether the short-form warnings may be used for food products.
What are the Prop 65 warning amendments?
Prop 65 Warnings
"Proposition 65 requires businesses to provide warnings to Californians about significant exposures to chemicals that cause cancer, birth defects or other reproductive harm." At least once a year, the State of California publishes a list of chemicals known to cause cancer, birth defects or other reproductive harm. Currently, the list contains approximately 900 chemicals, including additives and ingredients in pesticides, common household products, food, drugs, dyes and solvents. OEHHA requires businesses to provide warnings on their products if they may be exposing individuals to these chemicals, "unless the exposure is low enough to pose no significant risk of cancer or is significantly below levels observed to cause birth defects or other reproductive harm." The short-form warning may be displayed as follows: WARNING: Cancer and Reproductive Harm – www.P65Warnings.ca.gov.
Proposed Amendments
To provide clarification to businesses concerning the use of short-form Prop 65 warnings, OEHHA has proposed the following amendments: 1) Short-form warnings may only be used on products with five (5) square inches or less of label space; 2) Internet and catalogue sales may no longer utilize short-form warnings; and 3) the name of at least one chemical must be used in the text of short-form warnings. Additionally, the proposed amendments clarify that short-form warnings may be used on food products.
Prop 65 Enforcement
Prop 65 is enforced by the California State Attorney General's Office, district and city attorneys, as well as private citizens. Penalties for violating Prop 65 can be as high as $2,500 per violation per day.
Written Comment Period
The State of California requires governmental agencies to provide notice of all proposed regulatory modifications and a period for public comment. OEHHA has asked for written comments on the proposed Prop 65 amendments to be received by no later than March 8, 2021. OEHHA is providing a longer period for public comment than is typical because it is short-staffed due to COVID-19.
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Originally Published by Klein Moynihan, January 2021
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