ISSA members that sell products in California will be significantly impacted by a recent proposal issued by the California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) that would implement substantial changes to Proposition 65’s “short-form” warning option. If adopted, the changes will have a substantial adverse impact on the many businesses that use the popular Proposition 65 short-form warning, resulting in significant costs related to the label changes contemplated in the proposal.

OEHHA’s proposed amendments have implications primarily for businesses using Proposition 65’s short-form warnings. The amendments would restrict the use of short-form warnings to “small” products, require companies using the short-form warning to identify at least one listed chemical contained in their products per exposure pathway, and eliminate the use of short-form warnings for internet or catalog purchases, among other changes described below.

ISSA encourages its affected members to oppose the proposed changes to the short-form warning by submitting your comments directly to OEHHA; and also sharing with ISSA information about how this proposal will economically impact your business.

Background on Short-Form Warning.  OEHHA’s 2016 amendments to Prop 65, that went into effect just a few years ago, introduced the short-form warning and did not place any restrictions on its current use. Over the last few years, the short-form warning has proliferated as companies liked the fact that it takes up less label space and also did not require identification of the specific chemical for which the warning is being provided.

OEHHA’s Proposed Changes to Proposition 65 and the Short-Form Warning. On January 8, 2021, OEHHA announced its plan to amend existing law via proposed rulemaking that would fundamentally alter the use of short-form warnings under Prop 65 as summarized below.

1. New Limits on When a Short-Form Warning May Be Used.
   Under the proposed amendment the short-form warning would be restricted for use on only “small” products. Specifically, a short-form warning would be permitted only when the total surface area available for customer information on a product is 5 square inches or less, or the package shape or size cannot accommodate a full warning.
2. New Content Required for Short-Form Warnings.
   The short-form warning would be required to include the name of a listed chemical for each exposure pathway. For example, the new short-form warning text for a product containing a listed carcinogen would be:

   Cancer Risk From [Name of one or more chemicals known to cause cancer] Exposure – www.P65Warnings.ca.gov.

   Likewise, the new short-form warning text for a product containing a listed reproductive toxicant would be:

   Risk of Reproductive Harm From [Name of one or more chemicals known to cause reproductive toxicity] Exposure – www.P65Warnings.ca.gov

   If a product contains both a listed carcinogen and a listed reproductive toxicant, the chemical name for each pathway must be listed. Only one chemical from each pathway is required.

3. Short-Form Warnings Would No Longer Be Allowed for Internet or Catalog Sales.
   Lastly, the proposed amendment prohibits use of short-form warnings for internet and catalog warnings. Currently, a business is allowed to use a short-form warning for internet and/or catalog warnings if a short-form warning is used on the product. The proposed amendment eliminates this allowance.
4. Additional Information.
   More detail about the OEHHA proposed rule can be found online in the Initial Statement of Reasons; the Notice of Proposed Rulemaking; and the actual Amendments.

Industry Opposition. ISSA and other industry groups oppose the Prop 65 proposal because the limitations placed on the use of the short-form label would:

1. Impose unnecessary but substantial costs on industry in the form of the proposed changes to existing short-form warnings; and
2. Provide NO significant health or safety benefit to customers based on the proposed changes to the short-form of warning.

Moreover, the short-form warnings became effective only a couple of years ago. To require additional changes to short-form warnings that have only been in effect for a short period of time places unreasonable economic burden on those affected businesses.

Action Needed. ISSA encourages its affected members to oppose the proposed changes to the short-form warning by:

1. Submitting comments directly to OEHHA electronically through the OEHHA website at https://oehha.ca.gov/comments. Comments must be submitted by March 8, 2021.
2. Provide ISSA with a statement of how this proposal would impact your business financially by sharing with us the anticipated cost of complying with the proposed changes to the short-form. Send your information to Bill Balek, ISSA, [email protected] by February 25, 2021.