Prop 65 Changes Will Disrupt Business Compliance Planning
If your company is using the short-form warnings to comply with California’s Proposition 65 requirements, yet another major change is likely coming that will affect your Prop. 65 compliance plan.
The proposed regulatory changes to the widely adopted use of short-form warnings were proposed on Friday, January 8, 2021 by the agency responsible for Prop. 65’s implementation, OEHHA. If approved, Prop. 65 warning language will require any company using short-form warnings to revise their labeling and marketing materials.
The short-form warning came into being with the approval of an overhaul to the Prop. 65 regulations that was adopted in 2016 and became operative on August 30, 2018. Prior to these changes, California had a boilerplate, one-size-fits-all warning. With the 2016 regulatory changes, companies had to identify certain chemical or chemicals within the warning language and tie the chemical(s) to specific end-points: cancer and/or reproductive harm. However, the 2016 regulations also allowed companies to bypass these details by instead utilizing a “short-form” warning on consumer products that effectively only required end-point identification and a URL link to a website maintained by OEHHA.
WARNING: Cancer and Reproductive Harm – www.P65Warnings.ca.gov.
PROPOSED 2021 SHORT-FORM:*
WARNING: Cancer Risk From [name of one or more chemicals] and Reproductive Harm from [name of one or more chemicals] Exposure – www.P65Warnings.ca.gov.
2016 LONG-FORM (No change to content requirements in current proposal):*
WARNING: This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer and birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov.
*Note: These warnings are samples only and specific products/chemicals dictate the use of different language.
The idea behind the short-form warning was that there were instances where physical space limitations on products and packaging that simply could not accommodate the full text of the warning. However, the 2016 regulations did not specifically provide parameters regarding product or label size to dictate when the short-form warning could or could not be used. Whether for simple space-saving reasons, a desire not to identify a specific chemical, or various other reasons, many companies unsurprising opted for the short-form warning. As OEHHA noted in the current regulatory proposal, the short-form warnings are now being used on all sorts of products, including items like refrigerators, where there is ample space for the long-form warning. The proposed regulations sets a short-form label threshold of just five square inches or less. (By comparison, the screen on a standard mobile phone is around 14 square inches.)
OEHHA also states that they believe “over-warning” is occurring in some cases. They claim that some companies have opted for the short-form warning precisely because it does not require the identification of specific chemical(s). Some companies use the short-form warning prophylactically whether or not a given product causes exposure to a listed chemical to avoid the expense of determining whether a warning is actually necessary and/or to ward off any private enforcers.
The proposed regulatory amendments also do away with express provisions currently allowing for short-form warnings to be used on webpages and in catalogs in certain circumstances. However, OEHHA states there is a lack of comparable space limitations on webpages and in catalogs, so the long-form warning is more appropriate in those settings.
Finally, where there was previously ambiguity as to whether food products could use short-form warnings, the proposed changes expressly permit short-form warnings in specific instances and make adjustments to the content of such warnings. As with consumer products, the proposed short-form warning content requirements for food will also require the identification of at least one chemical in the warning. OEHHA provides the following warning for products containing acrylamide (and no other chemical requiring a warning for reproductive harm):
WARNING: Cancer Risk From Acrylamide Exposure – www.P65Warnings.ca.gov/food.
Once again, every company using a short-form warning will need to revisit their Prop. 65 compliance plans if and when these proposed changes are approved. If the proposed regulations are approved, there are built-in sell-through periods and a delay to the operative date to allow businesses to make necessary changes. However, changes to marketing copy and product art will need to be made sooner rather than later to maintain compliance.
For small businesses, OEHHA claims that the proposal “will not adversely impact very small businesses because Proposition 65 is limited by its terms to businesses with 10 or more employees.” This ignores the realities for many such businesses who lack bargaining power in their upstream and downstream agreements. It is often the small business stuck in the middle that is saddled with Prop. 65 compliance and liability in the indemnity provisions with their more powerful business partners. This hidden cost to small businesses is enormous and will no doubt provide another round of ammunition to the private enforcers of Prop. 65.
Any written comments concerning this proposed regulatory action, regardless of the form or method of transmission, must be received by OEHHA no later than March 8, 2021, the designated close of the written comment period. A public hearing on these proposed regulatory amendments will only be scheduled upon request. A request for public hearing must be made by February 22, 2021.