January 21, 2018

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Proposition 65: OEHHA Amends Proposition 65 Regulations for Clear and Reasonable Warnings

On December 6 2017, the California Office of Environmental Health Hazard Assessment (OEHHA) issued a notice alerting stakeholders that amendments were approved related to its August 28, 2016, adopted revisions to its Proposition 65 (Prop 65) Article 6 “clear and reasonable warnings” regulations. These amendments, first proposed on July 21, 2017, are intended to clarify and correct certain sections of Article 6 that OEHHA believed “would be beneficial to the regulated community in advance of the August 30, 2018 operative date of the new Article 6 regulations.”

The specific sections that have been modified are as follow:

  • Section 25600.1. Definitions: subsections (b), (i), (j), and (m)

  • Section 25600.2. Responsibility to Provide Consumer Product Exposure Warnings: subsections (b), (b)(4), (c), and (c)(1)

  • Section 25601. Safe Harbor Clear and Reasonable Warnings – Methods and Content: subsection (c)

  • Section 25602. Consumer Product Exposure Warnings – Methods of Transmission: subsections (a)(3), (a)(4), (b), (c), and (d)

  • Section 25603. Consumer Product Exposure Warnings – Content: subsections (a)(2)(E), (b), (b)(2)(A-C), and (c)

  • Section 25607. Specific Product, Chemical and Area Exposure Warnings: subsections (a) and (b)

  • Section 25607.2. Food Exposure Warnings – Content: subsection (a)(6)

  • Section 25607.5. Food and Beverage Exposure Warnings for Restaurants – Methods of Transmission: caption title and subsections (a) and (c)

  • Section 25607.6. Food and Beverage Exposure Warnings for Restaurants – Content: caption title and subsection (a)

  • Section 25607.7. Prescription Drug Exposure and Emergency Medical or Dental Care Exposure Warnings: subsection (a)

  • Section 25607.12. Furniture Product Exposure Warnings – Methods of Transmission: subsections (a)(1) and (a)(1)(A-B)

  • Section 25607.13. Furniture Product Exposure Warnings – Content: subsections (a)(1), (a)(2) and (a)(2)(B)

OEHHA has not substantively modified any of the changes as proposed in response to comments received but did withdraw proposed modifications to Sections 25602(d), 25607.14(a), 25607.15(a), 25607.16(a), and 25607.17(a) in response to comments received during this rulemaking.

Although these amendments are intended only to clarify the new regulations, there are some changes worth noting. First, OEHHA has revised the regulations to eliminate the term “on-product” warning and replaced the term as “short form.” There are no substantive changes to the content of the short form warning; OEHHA states the change was only because the term “on-product” was confusing to some stakeholders to the extent it appeared to refer to a new warning method as opposed to a different warning content.

In addition, OEHHA has revised the definition of “label” to indicate that a label can be “printed on or” affixed to a product or its immediate container or wrapper. This change is intended to clarify that there is no requirement to place a separate label with the warning on the product if the warning is printed on the product or the immediate container or wrapper. OEHHA also has revised the definition of “labeling” to delete the reference to “tags at the point of sale or display of a product” because such tags are a form of signage, not labeling. OEHHA now includes package inserts as an example of labeling in the definition of “labeling,” but OEHHA further states in its Final Statement of Reasons that “owner’s manuals and package inserts are not sufficient standalone safe harbor warning methods for consumer products.”

©2018 Bergeson & Campbell, P.C.


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