New Proposed Amendments to Proposition 65 Short-form Warning Labels
On January 8, 2021, the Office of Environmental Health Hazard Assessment (OEHHA), the lead agency that implements California’s Proposition 65 (Prop 65), proposed amendments to Article 6, Clear and Reasonable Warnings Short-form Warnings. Written comments to the proposed amendments are due on March 8, 2021.
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California Proposition 65 requires manufacturers, distributors, suppliers, and retailers of a consumer product containing a listed chemical to provide consumers with “clear and reasonable” warning if exposure to that listed chemical poses a significant risk of cancer or reproductive or developmental harm. OEHHA adopted new Article 6 Clear and Reasonable Warnings regulations in August 2016, which became operative in August 2018. The new Article 6 regulations adopted safe harbour warning methods and content for consumer product exposures that included provisions for a short-form warning.
The short-form warning requirements allow companies to apply a warning without identifying the chemical name for which the warning is being applied. However, there has been widespread use of the short-form warning, which the agency claims were only intended for small products with limited label space and do not further the purposes of Proposition 65. In addition, OEHHA has received numerous inquiries from businesses seeking clarification as to whether the short-form warning could be used to provide safe harbour warnings for food products, and for additional guidance on the safe harbour warning content for short-form food warnings.
The proposed regulatory action will facilitate businesses’ compliance with the Act by clarifying the guidance concerning the provision of safe harbour warnings under Proposition 65. The action will conform the short-form warning provisions to the original stated intent that a short-form warning should only be used where, due to limited label space on a consumer product a full-length warning will not fit. Also, the action will provide clarification and specificity regarding the use of short-form warnings for exposures to listed chemicals from food. This notice opens a comment period that will close on March 8, 2021.
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