For the past three years, the California Office of Environmental Health Hazard Assessment (OEHHA), the agency governing Proposition 65, has issued several proposed amendments to the Proposition 65 short-form warnings.

Our previous alert on these amendments can be accessed here.

In the latest developments regarding this issue, OEHHA announced further modifications on June 13 to its January 8, 2021, proposed amendments to the regulations governing Proposition 65 short-form warnings. Most importantly, these latest proposals provide businesses with greater flexibility for adopting any new requirements for the short-form warnings.

OEHHA’s previous version of the proposed amendments would have restricted the use of short-form warnings by limiting their application to products with five square inches or less of label space, eliminating short-form warnings for internet and catalog products, and adding requirements lengthening the minimum required language for a warning to be considered short form.

OEHHA’s latest modifications of the proposed amendments dial back the previously contemplated restrictions, and, if enacted, would:

1. Increase the time permitted for implementation. The proposed modification extends the period by which businesses can implement revised short-form warnings from two years to three years.
2. Revert to the original regulation text for most of the internet and catalog warning content. In response to public comments, OEHHA’s modification to the proposed amendments reverts to the original Article 6 regulation text.
3. Include a new provision providing internet retailers a 60-day grace period. The grace period would provide a 60-day safe harbor for online retailers to update their online short-form warnings during the three-year implementation period.

Takeaways

• OEHHA’s latest proposed amendments to the Proposition 65 short-form warnings reflect increased flexibility aimed at enhancing compliance by businesses selling consumer products in California.
• The proposed amendments are a direct response to public comments from business and other stakeholders. This shift from the earlier versions of the proposed amendments demonstrates that OEHHA thoughtfully considers public feedback to its proposals.

OEHHA is accepting public comments on the proposed modifications until June 28. Comments can be uploaded to OEHHA’s website here. If you need guidance on crafting comments for these proposals, please contact Lynn Fiorentino or Susanne Boniadi.

We will continue to monitor all developments related to the new proposal for short-form warnings under Proposition 65 and publish updates as developments become available.

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