California Begins New Rulemaking to Amend Warning Requirements under Proposition 65
On October 27, 2023, California’s Office of Environmental Health Hazard Assessment (OEHHA) issued a Proposed Rulemaking to amend the warning requirements under Proposition 65 (otherwise known as the Safe Drinking Water and Toxic Enforcement Act of 1986). This includes proposed revisions to both the standard long-form and short-form warning requirements, as well as the warning requirements for products purchased from the internet or from catalogs. OEHHA initially proposed amendments to short-form warning requirements in 2021 (an article on the 2021 proposal can be found here). However, that rulemaking process was allowed to lapse in May 2022 because OEHHA was unable to complete the rulemaking process within the timeframe provided by statute.
The most significant change in the proposed amendments is that short-form warnings would be required to name at least one Proposition 65-listed chemical per endpoint. Consumer products manufactured and labeled with the current short-form warnings two years or more before the amendments become effective may still be sold to consumers, regardless of when the consumer purchases the product. The proposed amendments explicitly allow short-form warnings to be used on food products, in contrast to the current regulations. The requirements for short-form warnings on food products are similar to those for consumer products, except there would not be a two-year grace period.
Under the proposed amendments, all warnings may include the words “CA WARNING:” or “CALIFORNIA WARNING:” in all capital letters and in bold print in place of the word “WARNING:” alone.
The proposed amendments also would require products purchased over the internet or from catalogs to include a warning on or with the product when it is delivered to the consumer. For products purchased from the internet, the proposed amendments also clarify that the warning must be prominently displayed on the product’s display page.
A public hearing on the proposed rulemaking is scheduled for December 13, 2023, and comments are due by December 20, 2023.