California OEHHA Proposes Revised Prop 65 Warning Requirements

Office of Environmental Health Hazard Assessment to host public hearing on updates to Prop 65 Dec. 13, accept public comments through Dec. 20

On Oct. 27, the California Office of Environmental Health Hazard Assessment (OEHHA) announced its intention to revise regulations for safe harbor warnings considered to be clear and reasonable under the Safe Drinking Water and Toxic Enforcement Act of 1986, known as Prop 65.

The proposed updates aim to make warning labels more useful for consumers by adding specific information and more flexible for manufacturers by allowing alternatives for some products. If approved, manufacturers across a variety of industries will likely incur costs to implement changes to their current warning labels.

According to OEHHA, 

"The proposal intends to make the Proposition 65 short-form warning more informative to consumers, clarify existing safe harbor warning requirements for products sold on the internet and in catalogs, add signal word options for food warnings, clarify that short-form warnings may be used to provide safe harbor warnings for food products, and provide new tailored safe harbor warnings for passenger or off-highway motor vehicle parts and recreational marine vessel parts."

What could change for Prop 65 safe harbor warnings?

More specifically, the proposed changes would:

• Allow use of the alternative signal words "CA WARNING" or "CALIFORNIA WARNING" (in all capital letters and bold print) to be substituted for the signal word "WARNING"
• Require disclosing the name of at least one chemical for which the warning is being given in both long- and short-form warnings
• Replace the safe harbor language of the current short-form warning (for example, "Cancer and Reproductive Harm — www.P65Warnings.ca.gov") with two options; both options require identifying one or more specific chemicals for which the warning is being provided, for example:
  • "Risk of cancer and reproductive harm from exposure to [name of chemical]. See www.P65Warnings.ca.gov."
  • "Can expose you to [name of chemical], a carcinogen and reproductive toxicant. See www.P65Warnings.ca.gov."
• Require that short-form warnings be subject to the same performance requirements for prominent display and conspicuity as long-form warnings
• Require that long-form or short-form warnings be provided on the product display page (or on a linked page) for internet purchases and that short-form or long-form warnings also be included on or with the product 
• Allow short-form warnings for food products
• Allow a general warning for replacement parts for passenger, off-highway, and motor vehicles and recreational marine vessels

The proposed changes include a two-year phase-in period in which current short-form warnings would still be permitted. 

Public hearing and comments for proposed Prop 65 warning requirements

OEHHA has scheduled a public hearing for Dec. 13 at 10 a.m. PST. The meeting will be held in the Sierra Hearing Room located at the CalEPA Headquarters, 1001 I Street, Sacramento, CA 95814. The hearing will be hybrid, conducted both remotely and in person. Information about remote participation will be posted on the OEHHA website before the hearing.

Public comments will be accepted until Dec. 20. Written comments relevant to the proposed regulatory action may be submitted by any interested person or their authorized representative. It is strongly recommended that information be submitted electronically, rather than in paper form, here.

Any changes to Prop 65 warning requirements could have significant implications for product manufacturers and supply chains across the country, given the size of California's consumer products market. Exponent encourages those affected by the proposed changes to attend the public hearing in person or online on Dec. 13 and to submit comments by Dec. 20.