California OEHHA proposes changes to Prop 65 warning regulations

On June 14, 2024, the California Office of Environmental Health Hazard Assessment (OEHHA) issued a notice proposing additional changes to the “clear and reasonable warning” regulations under Article 6 of Proposition 65 (Prop 65) regarding “short form” warnings (Notice).

The changes currently proposed are for proposed regulations that OEHHA issued on October 27, 2023. The history of these changes, dating back to January 2021, is provided in our memorandum available here . Written comments on the proposed changes are due no later than June 28, 2024.

Suggested modifications

OEHHA has modified three of the proposed regulatory requirements. OEHHA states that these modifications are being proposed in response to written comments and at a December 13, 2023 hearing on OEHHA’s October 27, 2023 proposal. OEHHA also states that the modifications are intended to “improve clarity.”

First, OEHHA is proposing to extend the implementation time for the revised short-form warning from two to three years. The effective date of these regulations has been a significant issue for the industry, with many concerns about the insufficient time frame for affected companies to implement the changes.

Second, OEHHA is proposing to revert to the original regulatory text for most of the content of online and catalog warnings. The October 2023 proposed changes specify requirements for when a short form warning is acceptable for online and catalog purchases. Specifically, OEHHA sought to provide options for delivering warnings on the Internet and in catalogs to the purchaser: (1) prior to purchase; and (2) upon delivery. OEHHA has now removed the proposed regulatory language so that the warning would no longer be required at the time of delivery of the product. These changes appear to be in response to industry comments that OEHHA’s proposal potentially requiring multiple warnings was burdensome and unnecessary.

Third, OEHHA proposes a new provision that would provide online retailers with a 60-day grace period, beginning on the date they receive a warning or written notification that a product will have new warning content, to update their online short warnings during the three-year implementation period. Specifically, the proposed regulation provides:

For online purchases made before (the OLAF inserts a date that is three years after the effective date of the 2023 amendments), a retailer is not liable under section 25600.2(e)(4) for conspicuously posting or displaying a new warning on the Internet for 60 calendar days after the retailer receives a warning or written notice under sections 25600.2(b) and (c) updating the short-form warning under section 25603(c) with content that complies with section 25603(b).

This proposal responds to industry comments regarding the impracticability of online merchants to immediately comply with supplier notification of the new warning requirements.

Comment

No changes were proposed to the new short-form warning text as set forth in proposed section 25603 and discussed in detail in our previous memorandum. This indicates that OEHHA has remained steadfast in its desire to change virtually all aspects of the short-form warning. The circumstances in which the short-form warning may be used will be more limited. When a company is permitted to use the short-form warning, the warning text will no longer be as “shortened” and will instead require language that includes, but is not limited to, the Prop 65 substance listing requirement.

The extra year provided for companies to comply is helpful, but may still be considered insufficient for many companies, especially small businesses, which will have to devote time and resources to modifying warnings on labels and elsewhere. Online retailers also now have some relief when they will have to implement changes to warnings provided by their suppliers. Unfortunately, these modifications do not address the myriad of other comments and criticisms of the proposal in general and the near-complete elimination of the short-form warning option.