Our Environment, Land Use & Natural Resources Group explains the updates the California Office of Environmental Health Hazard Assessment plans to make to the proposed changes to California’s Proposition 65 safe harbor warning language.

• The proposed amendments will affect consumer products, food products, internet sales, and motor vehicle parts and boat parts
• The changes ease the burden on implementation, particularly for internet-based retailers
• The deadline for public comments is June 28, 2024

As discussed in our prior client advisory, on October 27, 2023, the California Office of Environmental Health Hazard Assessment (OEHHA) issued a notice of proposed rulemaking and announcement of public hearing on proposed amendments to Proposition 65’s safe harbor warning requirements for consumer products, food products, internet sales, and passenger or off-highway motor vehicle parts and recreational marine vessel parts. On June 13, 2024, OEHHA modified the proposed amendments in response to public comments and to “improve clarity.”

First, OEHHA will increase the time for implementation of revised short-form warning content from two years to three years. While businesses will now have more time to update their warnings, the regulatory changes to the short-form warning requirements will still entail a cost and time-intensive overhaul of any company’s warning program.

Second, the modified text reverts to the original regulatory text for most of the internet and catalog warning content.

Third, OEHHA has included a new provision that would provide internet retailers a 60-day grace period from when they receive a warning or written notice from suppliers changing to the new short-form warning content to update their online short-form warnings during the three-year implementation period. OEHHA appears to have made this modification in response to stakeholder comments that, as a practical matter, retailers will not have the ability to take advantage of the previously proposed two-year grace period after the effective date of the amendments because they would need to provide the new warnings whenever their suppliers ask them to do so.

Fourth, and finally, OEHHA has deleted its proposal requiring products sold via the internet to include warnings “on or with the product when delivered to the consumer” or “on labeling accompanying the product.” This proposal would have posed significant obstacles for online retailers who often never possess the products at issue.

OEHHA’s proposed modified regulatory text does not alter the agency’s original proposal to amend the content for short-form warnings. If adopted, businesses that want safe harbor protection will still need to update their short-form warnings to identify a specific chemical exposure for which the warning is being given. Businesses will also have the option to include the signal words “CA WARNING” or “CALIFORNIA WARNING” instead of “WARNING” to allow businesses to target warnings to California consumers and to clarify that the warning is being given pursuant to California law.

The deadline to submit public comments is June 28, 2024.

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