CONSUMER PRODUCTS AND RETAIL E-SSENTIALS

USA: California Further Modifies the Options Using Short-form Proposition 65 Warnings

DECEMBER 2021 - ELECTRICAL AND ELECTRONICS, HARDLINES, SOFTLINES, TOYS AND CHILDREN'S PRODUCTS

As we reported¹ in January, the California Office of Environmental Health Hazard Assessment (OEHHA) moved a big step to limit use of the previous approved “safe harbour” short-form warnings for regulated chemicals in consumer products under the Proposition 65. On 13 December 2021, OEHHA announced further modifications² to the proposed regulations, but remains committed to avoid the “over-warning” issue. Written comments to the proposed regulatory text must be submitted no later than 21 January 2022.

After reviewing over 160 written and oral comments on a prior proposed version of the regulations, OEHHA modified the proposed regulation again to:

• increase the maximum label size for short-form warnings from 5 square inches to 12 square inches;
• allow using of the short-form warning on the internet or in catalogs only where the short-form warning is used on the product label;
• provide additional signal word options “CA WARNING” or “CALIFORNIA WARNING” to allow businesses to make clear that the warning is being given pursuant to California law;
• provide additional warning language options that more directly address exposure to carcinogens or reproductive toxicants; and
• provide minor clarifications on the wording of the warning by removing in several sections the word “product” from the proposed term “product label”. The existing term “label” remains.

For example, for an exposure to a listed carcinogen, the options of consumer product warning languages in the latest proposed regulations are:

  WARNING: Cancer risk from exposure to [Name of one or more chemicals] – www.P65Warnings.ca.gov
  CA WARNING: Cancer risk from exposure to [Name of one or more chemicals] – www.P65Warnings.ca.gov
  CALIFORNIA WARNING: Cancer risk from exposure to [Name of one or more chemicals] – www.P65Warnings.ca.gov

 or

  WARNING: Exposes you to [Name of one or more chemicals], a carcinogen -- www.P65Warnings.ca.gov
  CA WARNING: Exposes you to [Name of one or more chemicals], a carcinogen -- www.P65Warnings.ca.gov
  CALIFORNIA WARNING: Exposes you to [Name of one or more chemicals], a carcinogen -- www.P65Warnings.ca.gov

[1]  USA: California moves to limit the use of Proposition 65 short-form warning, January 2021

[2]  OEHHA notice on the proposed rulemaking