Changes to Prop 65 Warning Requirements on the Horizon

On October 27, 2023, the Office of Environmental Health Hazard Assessment (OEHHA) gave notice of several proposed amendments to the Proposition 65 warning regulations. If implemented, the rules may require many businesses to make substantial changes to their short-form warnings before a two-year phase-in deadline.   

The Notice of Proposed Rulemaking covers:

• Significant amendments to the short-form warnings, including identification of a listed chemical;
• Modifications to the warning methods for internet and catalog purchases;
• Short-form food exposure warnings;
• The addition of two new signal words; and
• New sections regarding warnings for motor vehicle and marine vessel parts.

Short-Form Warnings

OEHHA is concerned that the short-form warning—which can be placed directly on a product and does not currently require identification of a specific chemical—is being overused, causing dilution and consumer confusion.

According to OEHHA, businesses are using the short-form prophylactically to avoid litigation without investigating and identifying a specific chemical exposure. The amendments would require businesses to undertake the product testing required to identify the appropriate chemical.

OEHHA also determined that businesses have been using the short-form even when there is ample space for the long-form (e.g., on washing machines, refrigerators, and stoves).

In order to address these issues, OEHHA is proposing to amend subsection 25603 to:

• require businesses to identify a listed chemical—or two chemicals if the warning is being provided for both cancer and reproductive toxicity, unless the same chemical is listed for both;
• provide additional signal word options: “CA WARNING” and “CALIFORNIA WARNING” as alternatives to “WARNING”;
• modify and provide additional options for wording by adding terms such as “risk,” “can expose,” and “exposure.” For example:
  
  
  
• provide an unlimited sell-through period for products manufactured and labeled by the effective date of the amendments; and
• provide a two-year phase-in for the new short-form warnings.

With respect to font size, the warning currently has to be in “a type size no smaller than the largest type size used for other consumer information on the product.” OEHHA’s amendment would require that warnings be “prominently displayed” in a conspicuous manner. OEHHA envisions that the amendments would allow for more flexibility while confirming that the short-form warning is subject to the same standard of conspicuousness as other consumer product warnings.

Internet and Catalog Purchases

OEHHA is proposing that, in addition to the warning on the internet and in a catalog before purchase, warnings must also be included on or with the product when it is delivered to the consumer. Businesses would have the option to use the full-length or short-form warnings.

For internet warnings, businesses would also have additional options for hyperlinks using signal words “CA WARNING” or “CALIFORNIA WARNING.”  

Food Exposure Warnings

When OEHHA adopted the short-form warnings for consumer products, the regulations did not include a short-form warning option for food products. The proposed rulemaking would clarify that short-form warnings can be used for food products, with modifications to conform to the full-length warnings.  

The proposed amendments would also add the additional signal word options (“CA WARNING” and “CALIFORNIA WARNING”) for food product warnings. For example:

Motor Vehicle and Marine Vessel Parts Warnings

OEHHA proposes to adopt new sections 25607.50, 25607.51, 25607.52 and 25607.53 to add safe harbor warnings for chemical exposures to individual parts for passenger or off-highway motor vehicles and recreational marine vessels.

OEHHA determined that warnings for chemicals from these parts carry unique challenges and unpredictable exposures. In some circumstances, businesses may be providing warnings for chemicals that are not be accessible to consumers, for example, if the chemical is in an internal component that a consumer may never be exposed to.

To that end, OEHHA is proposing a general warning for the parts, combined with a recommendation that consumers practice good industrial hygiene. For example:

Next Steps

The Public Comment Period will remain open until December 20, 2023. OEHHA recommends electronic submissions though its website at https://www.oehha.ca.gov/comments. 

The Public Hearing will take place at the CalEPA Headquarters in Sacramento at 10:00 AM PT on December 13, 2023. OEHHA will post information about how to participate remotely on its website.