Reed Smith Client Alerts

The California Office of Environmental Health Hazard Assessment (OEHHA) is proposing to significantly amend the regulations under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) to revise the method of transmission and content of state-approved “safe harbor” short-form warnings for consumer products.

Authors: Todd O. Maiden Eric J. Schmoll

OEHHA is concerned that over-use of the short-form warning option allows manufacturers and retailers to avoid passing on clear and reasonable warnings about regulated carcinogens and reproductive toxicants to California consumers. They also believe that regulated parties are beginning to place short-form warnings on all their products to avoid claims (i.e., “over-warning”), even when a business has no knowledge of an exposure to a listed chemical requiring a Proposition 65 warning.

As background, the current regulations for consumer products allow for two state-approved “safe harbor warnings.” The “long-form” warning requires that “at least one” chemical from each exposure category (carcinogens and reproductive toxicants) be listed. In the case of chemicals that are regulated under both categories (e.g., lead or certain phthalate plasticizers), only one chemical need be listed. Alternatively, the approved “short-form” warning only requires that the chemical category (not the chemical) be listed.

OEHHA claims it intended that the short-form warning option only be used for small products or containers with insufficient space on the packaging for the long-form warning, but businesses have used the short-form warning on a wide range of consumer products that have enough label space for the long-form warning. However, the current regulation does not expressly limit application of the short-form warning to a maximum label surface area.

An example of the current short-form warning for a product that contains carcinogens and reproductive toxicants is the following:

WARNING: Cancer and Reproductive Harm -