Significant Changes to CA Proposition 65 Consumer Product Warnings Proposed - Rules Would Limit Use of Short-Form Labels by Manufacturers, Suppliers and Sellers
On January 8, 2021 California’s Office of Environmental Health Hazard Assessment (OEHHA) issued a proposal to amend the short-form warning regulations for consumer product exposures under Proposition 65. These proposed changes, if adopted as written, would affect a wide range of manufacturers, suppliers and sellers doing business in California.
The official name of Proposition 65 is the “Safe Drinking Water and Toxic Enforcement Act of 1986” and was approved by California voters in 1986. Proposition 65 requires manufacturers, suppliers and retailers to provide “clear and reasonable” warnings to California consumers about exposure to certain chemicals that are known to cause cancer, birth defects or other reproductive harm. These chemicals can be in the products that Californians purchase, either in-state or on-line from out-of-state sellers. California publishes a list of the chemicals which must be updated at least once a year. About 900 chemicals are on the list.
Proposed Short-Form Warning Revisions
OEHHA currently provides two options for product labels: (1) a long-form warning; and (2) a short-form warning. The long-form warning requires at least one name of a listed chemical that could result in exposure from the product’s use. The current short-form warning requires only a brief statement of the potential exposure (e.g., “WARNING: Cancer and Reproductive Harm – www.P65Warnings.ca.gov).
The current regulation also does not limit application of the short-form warning to a maximum label surface area, so many businesses have elected to use the short-form for their consumer products.
Now, however, OEHHA’s proposed amendments are intended to both narrow the circumstances in which a short-form warning can be used, and to make the content of the warning more specific. In its Initial Statement of Reasons (ISOR) for the proposed short-form rulemaking, the agency states, “While OEHHA intended for this warning option to only be used for small products or containers with insufficient space for the longer form warning, businesses have used the short form warning on a wide range of consumer products that have more than enough space for the longer warning. Just as concerning, the short-form warning is also being placed on some products even when the business has no knowledge of an exposure to a listed chemical requiring a Proposition 65 warning.”
The ISOR also provides current examples of current short-form warnings (including one from an unidentified guitar, bass and ukulele website) and examples of short-form warnings that would be compliant with the proposed amended regulations.
OEHHA is proposing to add specificity to and limit the use of short-form warning labels through these changes:
- Only allow use of the short-form warning on products with five square inches or less of label space.
- Only allow use of the short-form warning on products where the package shape or size cannot accommodate a full-length warning.
- Require that the name of at least one chemical be included in the short-form warning and that the terms “risk” and “exposure” be used.
- Eliminate use of short-form warnings for internet and catalog warnings.
As a result of these changes, businesses would need to revise their short-form warnings or replace them with long-form warnings. In addition, short-form warnings in catalogs or on websites must be replaced with long-form warnings.
Phase-in Period
In the proposal, OEHHA has provided a transition period for compliance with the new rules:
- For businesses planning to use the modified short-form warning, there will be a one-year phase-in period for existing products.
- For products with compliant warnings at the time of manufacture, the regulation provides for an unlimited sell-through period. This is intended to allow businesses to avoid recalling items in order to apply a revised short-form warning.
Based on the timeline in the proposal, the new limitations on short-form labeling would go into effect one year after the final regulations are adopted.
Next Steps
NAMM is working with CalChamber and other stakeholders on an approach to effectively voice our collective concerns about the extra and untimely burdens these extra regulatory requirements will impose on manufacturers and sellers, including those across the music products industry. Wide-spread revisions to product labels, in combination with just a one-year implementation period, could create significant challenges for the many businesses that continue to grapple with the economic consequences of the COVID-19 pandemic.
OEHHA is accepting written comments on the proposed rules until March 8, 2021. We strongly encourage interested NAMM members to submit comments regarding the scope and impact of these proposed rules on your business. Because of limited in-office staffing during the COVID-19 emergency, OEHHA recommends that comments be submitted electronically, rather than in paper form, through this site: https://oehha.ca.gov/comments.