By Trent Norris, a Partner in the San Francisco office of Arnold & Porter and the co-leader of the firm’s Consumer Products and Retail Sector, and Peg Carew Toledo, Counsel in the firm’s San Francisco and Sacramento offices.
On January 8, 2021, California’s Office of Environmental Health Hazard Assessment (“OEHHA”) released its proposal to amend the Proposition 65 warning regulations with respect to short-form “safe harbor” warnings. Under the existing regulations, which were adopted in a comprehensive overhaul in 2016 and effective in 2018, the short-form safe harbor warning reads as follows:
WARNING: Cancer and Reproductive Harm – www.P65Warnings.ca.gov.
This warning method was established in regulation by OEHHA after a lengthy stakeholder process and is an efficient tool for companies to comply with Proposition 65 because it balances competing label requirements, conveys a succinct warning to the consumer, directs them to contextual information about Proposition 65, and minimizes the chance of consumer confusion. It does not require identifying the specific chemicals at issue, requires less space, and can be used effectively for internet displays. A company’s use of this warning, or the long-form warnings, is deemed compliant with Proposition 65’s requirement for “clear and reasonable” warnings, a term that is otherwise undefined in the statute, regulations, or case law. As a result, the vast majority of businesses that provide Proposition 65 warnings use the regulatory safe harbor warnings.
OEHHA’s proposal would change the short-form warning to the following form (for example):
WARNING: Risk of Cancer from Formaldehyde and Reproductive Harm from Toluene – www.P65Warnings.ca.gov.
The changes include:
- Requiring that all short-form warnings identify at least one chemical for each endpoint (cancer and reproductive toxicity);
- Limiting the use of short-form warnings to products with labels that are five square inches or smaller;
- Requiring short-form warnings to use the term “risk”; and
- Eliminating the use of short-form warnings on the internet or in a catalog.
Taken together, these changes will eliminate companies’ use of short-form warnings on many products and potentially confuse consumers who are just becoming used to the 24-month old warnings. The changes are unwarranted and should not be adopted. First, the amendments will require companies that have relied on short-form warnings as part of their Proposition 65 compliance programs to revamp their compliance efforts only three years after a complete overhaul of the warning regulations. Second, a change to the warning regulations will cause disruption up and down the distribution chain by requiring a transition to new short-form warning language or long-form warnings on products, websites, catalogs, and online. Third, if the proposed amendments are enacted, they will create opportunities for unscrupulous plaintiffs’ lawyers to file lawsuits based on technical defects in warning language that does not comply with these new proposed requirements for short-form warnings.
OEHHA has not analyzed, much less considered, the costs of these changes to businesses and consumers, the extent to which short-form warnings are actually used, or the alternative of supplementing the website maintained by OEHHA (and referred to in all safe harbor warnings) to provide additional information for interested consumers. Nor has OEHHA evaluated its assumptions that consumers will respond differently based on the precise identity of the chemical(s) at issue or that requiring the identification of specific chemicals will discourage businesses from providing unnecessary warnings.
The links to the regulatory documents are below. Comments must be submitted by March 8, 2021. Comments may be submitted electronically through OEHHA’s website at https://oehha.ca.gov/comments.
The link to the notice of proposed rulemaking is here.
The link to the proposed amendments is here.
The link to the Initial Statement of Reasons is here.