PROPOSED MODIFICATION TO PROP 65 WARNING FOR PRODUCTS

PROPOSED MODIFICATION TO PROP 65 WARNING FOR PRODUCTS

The California Office of Environmental Health Hazard Assessment (OEHHA) has issued a public notice[1] regarding its plan for amendments to be made in the Proposition 65 (Prop 65) short-form warning labels. The basic requirement of the Proposition 65 is making mandatory for businesses in California to enclose clear and reasonable warning before they knowingly and intentionally cause an exposure to a chemical listed as known to the state to cause cancer or reproductive toxicity.”[2] The OEHHA is going to hold a public hearing upon request, which would need to be received by February 22, 2021 and it has requested public comments on the proposed amendments[3] by March 8, 2021. These amendments are only for the products sold in California as the state has large number of tobacco consumers.

The OEHHA had already adopted major changes in the year 2016. In that changes they gave option to the businesses to use “short-form” warnings on product labels and websites.

The reason behind these proposed amendments given by the OEHHA is to address the following issues involving:

• Businesses are not required to identify a chemical or chemicals in the short-form warning, which significantly limits the usefulness of the warnings to consumers;
• Businesses use the short-form warning for products that can easily accommodate a longer warning; and
• Businesses use the short-form warning prophylactically when no warning is required.

To address these concerns, OEHHA has proposed several key changes.

• The proposal would amend 27 CCR § 25602(a)(4) to only allow short-form warnings to be used if:
  • The total surface area of the product label available for consumer information is 5 square inches or less;
  • The package shape or size cannot accommodate the full-length warning described in 27 CCR § 25603(a), and;
  • The entire warning is printed in a type size no smaller than the largest type size used for other consumer information on the product.
• The proposal would amend 27 CCR § 25602(b) to remove the option to provide a short-form warning label on websites.
• The proposal would amend 27 CCR § 25603(b) to require short-form warnings to list specific chemicals that are listed as carcinogens or reproductive toxicants.

The Tobacco industry could be impacted from these proposed amendments from the following ways. Firstly, companies will have to modify their short-form Prop 65 warning on their websites. They are required to display the full-length warning described in 27 CCR § 25603(a) or a hyperlink to the full-length warning. Generally, companies do not want to advertise the chemicals used on the products, but products which come under the short-form Prop 65 warning labels will need to list chemicals used in the product. Thirdly, products with labels that have total surface areas larger than 5 square inches would need to include the full-length warning described in 27 CCR § 25603(a), which could include several paragraphs listing chemicals, depending on the ingredients in the tobacco product.

If these amendments are approved or adopted by the state, then the companies have to comply with these changes within a period of one year from the effective date.

[1] Notice at https://oehha.ca.gov/proposition-65/crnr/notice-proposed-rulemaking-amendments-article-6-clear-and-reasonable-warnings-0

[2] OEHHA, Initial Statement of Reasons (Jan. 2021)

[3] Proposed amendments at https://oehha.ca.gov/media/downloads/crnr/p65shortformproposedregtextd2021.pdf