CONSUMER PRODUCTS AND RETAIL E-SSENTIALS

USA: California moves to limit the use of Proposition 65 short-form warning

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

On 8 January 2021, the California Office of Environmental Health Hazard Assessment (OEHHA) issued a notice of proposed rulemaking¹ significantly restrict the use of the short-form warning as a safe harbour under Proposition 65. Comments to the Agency are due by 29 March 2021.

The short-form option is currently permitted² for use without regard to the package size or available labelling space. However, there has been a widespread use of short-form warnings in ways that were not intended and do not further the purposes of Proposition 65. 

The amendments would change the content of the warnings and the method of use. The changes are meant to make short-form warning less appealing to business, to drive identification of Proposition 65-listed chemicals in the warning, and to discourage “over-warning”.

The proposed regulation makes the following changes:

• Limiting the use of the short-form warning, only allows its use on products with 5 square inches or less of label space, and the package shape or size cannot accommodate the full-length warning. (The provision retains the requirement that the short-form warning type size be no smaller than “the largest type size used for other consumer information on the product”, and no smaller than 6-point type.)
• Eliminating short-form warnings in internet and catalogues, if the product carries such warnings.
• Requiring at least one chemical to be included in the warning.
• Clarifying how short-form warnings can be used for food products.

Currently, short-form warnings for consumer products look like:

 WARNING: Cancer – www.P65Warnings.ca.gov

 WARNING: Reproductive Harm - www.P65Warnings.ca.gov

 WARNING: Cancer and Reproductive Harm - www.P65Warnings.ca.gov

If the proposed regulation is finalised, the new short-form warnings would be:

 WARNING: Cancer risk from [Name of one or more chemicals known to cause cancer] Exposure – www.P65Warnings.ca.gov

 WARNING: Risk of Reproductive Harm from [Name of one or more chemicals known to cause reproductive toxicity] Exposure – www.P65Warnings.ca.gov

 WARNING: Risk of Cancer and Reproductive Harm from [Name of one or more chemicals known to cause cancer and reproductive toxicity] Exposure – www.P65Warnings.ca.gov

For businesses that choose to use the modified short-form warning, OEHHA has proposed the regulation to become operative one year after the effective date of the amendments. Any product that is manufactured within that one-year window and bears the “old” short-form warning would be allowed to sell through for an indefinite period.

[1]  Notice of Proposed Rule-making

[2]  OEHHA sample warnings and translations