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 - www.p65warnings.ca.gov/.
The rulemaking would expressly modify the existing short-form warning provisions by:
- Only allowing use of the short-form warning on products with five square inches or less of label space.
- Eliminating all use of short-form warnings for internet and catalog warnings (which could result in a burden on retailers, since the packages they receive from vendors may have a short-form warning on them due to packaging size, but somehow would require that the retailer divine what chemicals are in the product so as to place a long-form warning on their web sites).
- Clarifying how short-form warnings can be used for food products.
- Requiring that the name of at least one chemical be included in the short-form warning.
OEHHA has provided an example of what the proposed short-form warning will look like (in this case, for a product that has two separate chemicals – one, a regulated carcinogen, and the other, a regulated reproductive toxicant):
WARNING: Cancer Risk From Formaldehyde and Reproductive Risk From Toluene Exposure - www.p65warnings.ca.gov/
Should this proposed change be approved, it will result in significant changes to tens of thousands of consumer products – not only changes to product packaging but also changes on all related websites for the products.
While the state has proposed a one-year phase-in period for existing products and an unlimited sell-through period for products that had compliant warnings when they were manufactured, that still does not take into account the large lead times that companies need when addressing Proposition 65 concerns. Significant time and resources will be required to identify and/or confirm specific chemicals of concern in all products to determine what chemical(s) need to be specifically named in the new warnings, and then to make changes to packaging, etc.
Any written comments concerning this proposed regulatory action, regardless of the form or method of transmission, must be received by OEHHA no later than March 8, 2021, the designated close of the written comment period.
Client Alert 2021-016