CONSUMER PRODUCTS AND RETAIL E-SSENTIALS

USA: CALIFORNIA PROPOSES SECOND AMENDMENT TO PROPOSITION 65 SHORT-FORM WARNING REGULATIONS

APRIL 2022 - ELECTRICAL AND ELECTRONICS, HARDLINES, SOFTLINES, TOYS AND CHILDREN'S PRODUCTS

California’s Office of Environmental Health Hazard Assessment (OEHHA) first proposed rulemaking¹ to the short-form warnings in January 2021 and issued modifications to the original regulatory text in December 2021. During both comment periods on the proposed and revised rules, the industry widely opposed the regulations and argued that the plan would increase compliance costs at a time of economic stress due to the pandemic and would trigger more litigation by bounty hunters.  

On 5 April 2022, OEHHA issued its second notice of modification² to the proposed amendments to avoid the short-form warning overused by companies.  

OEHHA is proposing to further amend the proposed regulatory text after considering comments received during the first modifications in December 2021. Comments are due by 20 April 2022.  

The important changes proposed in the second amendments include: 

• Removing the label size and package shape limitations on the use of the short-form warning allowing the use of the short form on product labels of any size and shape;
• Removing the requirement that font type size must be the same as the largest type size providing consumer information. The existing provision requiring a minimum of 6-point type size when using short-form warnings is unchanged; 
• Adding a reference to clarify the existing requirement “to render the warning likely to be seen, read, and understood by an ordinary individual under customary conditions of purchase or use”. 
• Changing the warning content language “exposes you to” in the warning statement to “can expose you to”; 
• Extend the implementation period of the regulation from one year to two years after the amendments become effective.

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

 WARNING [OR CA WARNING / CALIFORNIA WARNING]: Cancer risk from exposure to [name of chemical] - www.P65Warnings.ca.gov.

or

 WARNING [OR CA WARNING / CALIFORNIA WARNING]: Can expose you to [name of chemical], a carcinogen - www.P65Warnings.ca.gov.

[1]  USA: California further modifies the options using short-form Proposition 65 warnings, December 2021

[2]  OEHHA Notice Second Modification of Text for Proposed Amendment, April 2022