The California Office of Environmental Health Hazard Assessment (OEHHA) recently issued a notice of several proposed amendments to its heavily criticized Proposition 65 (Prop 65) Article 6 “clear and reasonable warnings” regulations.

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This notice of proposed changes comes after initial modifications were proposed in 2021 followed by two rounds of revisions that were ultimately abandoned in 2022.

“Industry was harshly critical of OEHHA’s proposal in written comments and during a March 11, 2021, hearing,” says a Bergeson & Campbell PC article in Lexology. “Industry argued that OEHHA’s proposal was unwarranted and its concerns with the current warning requirements unfounded. Industry stakeholders also expressed frustration with the expected significant resources and costs that implementation of these changes would inspire. On May 20, 2022, OEHHA announced that it would be unable to complete the rulemaking process within the one-year deadline required under California law.”

This time around, the OEHHA states the intent of the proposed regulations is to:

• Make the Prop 65 short-form warning more informative to consumers by including identification of a listed chemical.
• 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.
• Add new sections to provide safe harbor warnings for passenger or off-highway motor vehicle parts and recreational marine vessel parts.

“OEHHA’s regulations include safe harbor warning methods and content that businesses can use to warn for consumer product exposures to listed chemicals,” states the OEHHA announcement. “In adopting the existing warning regulations, OEHHA determined that an alternative to the general consumer product warning was needed for use on small packages or labels. The existing short-form warnings do not require identification of a specific chemical exposure for which a warning is being given. Not requiring a specific chemical to be included in the short-form warning has led to its over-use, and many businesses are using the short-form warning prophylactically because it protects from potential litigation. The proposal would require identification of a specific chemical exposure for which the warning is being given.

“OEHHA has determined that the proposed changes to the short-form warnings will provide sufficient information for consumers to make informed choices about their exposures to listed chemicals in consumer products and are necessary to further the purposes of the Act and comply with the ‘clear and reasonable’ warning requirement. The proposed changes would also provide clarity for businesses regarding other aspects of short-form warnings and regarding existing safe harbor warning requirements for internet and catalog purchasers.”

See the proposed Article 6 changes for more information.

Written comments on the proposed regulatory action will be accepted by the OEHHA until December 20, 2023. Comments may be submitted electronically or mailed to Monet Vela, Office of Environmental Health Hazard Assessment, 1001 I Street, 23rd Floor, P.O. Box 4010, Sacramento, California 95812-4010.