OEHHA Proposes New Changes to Prop 65 Short Form Warnings

On June 14, 2024, the California Office of Environmental Health Hazard Assessment (OEHHA) issued a notice proposing additional changes to its Proposition 65 (Prop 65) Article 6 “clear and reasonable warnings” regulations for “short form” warnings. The changes respond in part to comments received by OEHHA at the December 13, 2023, public hearing. Written comments on the proposed changes were due by June 28, 2024.

The changes proposed now are to the proposed regulations that OEHHA issued on October 27, 2023:

First, OEHHA proposes to increase the time for implementation of the revised short form warning content from two years to three years.

Second, OEHHA proposes to revert to the original regulation text for most of the Internet and catalog warning content.

Third, OEHHA proposes a new provision that would provide Internet retailers a 60-day grace period, commencing from the date they receive a warning or written notice that a product will have new warning content, to update their online short-form warnings during the three-year implementation period.

OEHHA remains focused on its desire to limit the use of and change almost all aspects of the short-form warning. Under the proposed rule, it is clear that the circumstances for when the short-form warning can be used will be more limited. When a company can use the short form warning, the warning text will be expanded and require language including but not limited to the requirement to list a Prop 65 substance.

OEHHA failed to address numerous other comments about the proposed rule changes that virtually eliminate the short form warning option. While the extended time frame to comply with the new warning requirements from two to three years is helpful, implementation of these new warnings will be burdensome for U.S. businesses that have long relied upon the short form warning to comply with Prop 65.