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OEHHA Proposes Changes to Prop 65 Short Form Warnings

By Emily Lyons on February 25, 2021
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Recently, the Office of Environmental Health Hazard Assessment (OEHHA) proposed to amend the Proposition 65 regulations related to short form warnings. Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses to provide “clear and reasonable” warnings before knowingly and intentionally exposing Californians to listed chemicals. These warnings are required to appear on a wide range of products, including foods.

Over the last several years, many companies have chosen to use the short form warning because it takes up less label space and does not require companies to identify the warning identify a specific chemical.  In the proposal, OEHHA seeks to greatly restrict the use of short form warnings. In particular, OEHHA points out that “widespread use of short-form warnings in ways that were not intended and do not further the purposes of Proposition 65.” OEHHA believes that the misuse has resulted in providing less information to consumers and allow for circumstances where companies provide a warning without conducting an assessment of whether there is an actual risk of exposure.

Accordingly, the proposal would:

  • Restrict short-form warnings to products with 5 square inches or less of label space (and the package shape or size cannot accommodate the full-length warning).
  • Retain 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.
  • Eliminate use of the short-form warning in catalogues and on websites (which has been allowed for products that use a short-form warning on-product).
  • Require the short form warning to identify at least one chemical for which the warning is being provided.
  • Allow the use of short form warnings on food products.
  • Provide manufacturers after the rule is finalized to adopt the revised short form warnings on consumer products and foods.
  • Allow manufacturers to sell-through products manufactured prior to the compliance date that provide short form warnings compliant with the August 2016 revisions to the Proposition 65 warnings.

OEHHA has scheduled a virtual public hearing on March 11, 2021, at 10:00 a.m. on the proposed amendments to the short form warnings. Details regarding the hearing will be posted on the OEHHA website closer to the date of the virtual hearing. OEHHA is accepting comments on these proposed changes until March 29, 2021.

If your organization is interested in commenting on this proposed regulation, contact Seth Mailhot, Megan Caldwell, Amy Wachs, Emily Lyons or your Husch Blackwell attorney. Our team also assists manufacturers in determining whether their products are covered by Proposition 65, provide assistance designing complainant warnings, as well as serve as legal counsel to address a Proposition 65 60-day notices.

Photo of Emily Lyons Emily Lyons

Emily grew up on a northern Illinois dairy farm, and now helps clients bridge the gap from farm to fork. She guides clients on complex regulatory issues as they bring dairy products, beverages, fruits and vegetables, processed foods and other agricultural goods to…

Emily grew up on a northern Illinois dairy farm, and now helps clients bridge the gap from farm to fork. She guides clients on complex regulatory issues as they bring dairy products, beverages, fruits and vegetables, processed foods and other agricultural goods to market. At the intersection of agriculture, food and environment, Emily handles compliance matters such as labeling, marketing, permitting and agency inquiries including the Food Safety Modernization Act, Pasteurized Milk Ordinance, USDA National Organic Program and bioengineered food disclosure standard, Generally Recognized as Safe status for food additives and food contact substances, and the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65).

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  • Posted in:
    Environmental and Climate
  • Blog:
    Climate Solutions Legal Digest
  • Organization:
    Husch Blackwell LLP
  • Article: View Original Source

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