Roughly eight months have passed since California's Office of Environmental Health Hazard Assessment (OEHHA) last proposed to amend its Prop 65 regulations on "short-form" and internet warnings provisions. Now, in response to numerous public comments, OEHHA is again revising the proposed amendments, specifically to:
- Increase the time for implementation of revised short-form warning content from two years to three years;
- Revert to the original regulation text for most of the internet and catalog warning content; and
- Include a new provision which, during the three-year implementation period of the proposed amendments, would provide internet retailers a 60-day grace period to update online short-form warnings from the date they receive a warning or written notice from a manufacturer or distributor changing the warning content.
While OEHHA proposes to extend the implementation period, the revised proposal does not alter the fundamental changes the agency is pursuing with regard to the short form warning. In particular, the amendments would require the "short-form" warning to be significantly less short by requiring the identification of at least one specific chemical for which the warning is being provided and to utilize lengthier text than required for the current short-form warning. Our write-up of the rulemaking proposed revised short-form warnings can be found here.
In contrast for internet and catalog warnings, OEHHA is reversing course and largely reverting back to the original 2016 regulatory text. The updated proposal would clarify that internet warnings comply with Prop 65 if they use one or more of the following methods:
- A warning on the product display page;
- A clearly marked hyperlink using the word "WARNING" or the words "CA WARNING" or "CALIFORNIA WARNING" on the product display page that links to the warning; or
- Otherwise prominently displayed warning provided to the purchaser prior to completing the purchase.
The proposal also emphasizes that "a warning is not prominently displayed if the purchaser must search for it in the general content of the website."
Interestingly, the proposed revisions would do away with language previously proposed to "clarify" that internet "safe harbor" warnings must also be included "on or with the product when delivered to the consumer."
Finally, OEHHA would allow three years to implement the revised warning content. In addition, for retailers, the proposal would provide a 60-day grace period to provide updated warning language on websites after receiving a warning or written notice of changes.
Speaking broadly, Prop 65 requires businesses to provide warnings to consumers prior to selling a product in California that could cause an exposure to a listed chemical. The law does not specify required warning text or methods, other than that the warning be "clear and reasonable" and provided to the consumer prior to exposure. However, OEHHA regulations specify warning language and methodology for various product categories which, if utilized, are deemed de facto compliant (a/k/a "saf- harbor" warnings). To avoid challenge, companies routinely utilize these "safe-harbor" warnings, including "short-form" versions that were originally introduced in the 2016 Prop 65 amendments for use with products with limited label space. The brevity of this method, combined with this label's ability to comply with Prop 65 without disclosure of a specific chemical, has resulted in its widespread popularity with manufacturers, distributors, and retailers.
Comments are due on this proposal by June 28, 2024. More information can be found on OEHHA's website here.
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