Nov. 9, 2023
On October 27, California’s Office of Environmental Health Hazard Assessment (“OEHHA”) issued a Notice of Proposed Rulemaking (“NOPR”) to amend existing sections of the state’s Proposition 65 consumer product labeling guidance. Currently, businesses may use either the “long-form” or “short-form” Proposition 65 safe harbor warning language to provide a “clear and reasonable warning” to consumers before they are exposed to a chemical listed as known to the state to cause cancer or reproductive toxicity.
These amendments seek to address overuse and dilution of the short-form warning by requiring it to mention the specific chemical(s) at issue in a given product. Additionally, the amendments propose changes to make short-form warnings more informative to consumers, clarify requirements for products sold on the internet, clarify options for short-form food warnings, and provide tailored warnings for passenger motor vehicle, off-highway motor vehicle, and recreational marine vessel parts.
Below is a brief discussion of the major amendments in the proposed rule.
Clarifying Short-Form Warnings
Currently, Proposition 65 allows regulated businesses to utilize a short-form warning on products that serves as a “safe harbor” defense to alleged violations of the law. However, the current short-form does not require mention of any listed chemicals like its long-form counterpart does. OEHHA’s proposal would now require businesses to identify at least one listed chemical within this short-form warning.
According to OEHHA, it is seeking changes to curb overuse of the short-form safe harbor warning. “Not requiring a specific chemical or chemicals to be included in the short-form warning has caused its over-use, diluting the impact of legitimate warnings.” OEHHA California Proposition 65 Initial Statement of Reasons (“ISOR”) at 7 (October 27, 2023). OEHHA notes that some businesses provide the short-form warning as a litigation avoidance strategy even if their products may not contain a listed chemical or the chemical is not used in a way that exposes the consumer, which does not serve the intent of providing relevant hazard information to consumers. OEHHA believes that businesses pressed to identify a chemical exposure on their short-form warning will determine that no warning is required for some of their products, making the warnings that remain more meaningful.
Additionally, the proposed rulemaking clarifies the required font size by amending the language to ensure the font size “be likely to be seen, read, and understood by an ordinary individual under customary conditions of purchase or use.” The proposed rule keeps in place the minimum 6-point type size requirement for short-form warnings.
The proposed rule provides an unlimited sell-through period for products manufactured and labeled prior to the effective date of the amendments to limit costs to businesses, as well as a two-year phase-in period for the new short-form safe harbor warning.
California-Targeted “Signal Words” for Warnings
The amendments propose additional options for signals preceding the warning label. Under the proposed rule, regulated entities could add “CA WARNING” or “CALIFORNIA WARNING” to better target the warning to California consumers and clarify the warning is being given pursuant to California law.
Clarifying Warnings for Products Purchased on the Internet or Through Catalogs
The amendments clarify that products subject to Proposition 65 warning requirements must warn customers both prior to purchase on a webpage and on or with the product when delivered to the consumer. Under the proposed rule, the language would now specify that consumer-facing websites must warn the consumer of a potential exposure by placing the warning on a product display page, providing a hyperlink to the warning alongside the words “WARNING,” “CA WARNING,” or “CALIFORNIA WARNING,” or otherwise displaying the warning prominently in some step prior to purchase.
Additionally, the business would now need to provide a full-length or short-length warning upon delivery via the product packaging, the product itself, or via an insert within the product packaging. “The goal of this proposal is to provide a warning to the end consumer of the product, namely the one who will be exposed and should receive the information to make an informed decision about that exposure.” ISOR at 19.
Providing a Short-Form Warning for Food Products
The amendments provide a structure for a short-form warning for food products. Other specific requirements for food labels, such as the exclusion of the warning symbol and the need to provide the hyperlink to www.P65Warnings.ca.gov/food remain the same.
Tailored Warnings for Passenger and Off-Highway Motor Vehicle Parts and Recreational Marine Vessel Parts Exposure
The proposed rule creates tailored labeling options for passenger motor vehicle, off-highway motor vehicle, and recreational marine vessel parts to cover exposures that occur during the purchase, handling, or installation of a given part. It would also require posting of this warning at the retail point of sale or where the product is displayed.
How Nelson Mullins Can Assist
If you have questions about the proposed changes to the Prop 65 safe harbor warnings, please contact Elizabeth Haskins or Brandon Prince. OEHHA is currently accepting public comment on these proposed regulations through December 20, and Nelson Mullins can also assist you in preparing and submitting comments on the proposed rulemaking.
Established in 1897, Nelson Mullins is an Am Law 100 firm of more than 1,000 attorneys, policy advisors and professionals with 33 offices in 17 states and Washington, D.C. For more information, go to www.nelsonmullins.com.
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