GOODER AND HARDER, CALIFORNIA: Life is Short, But Prop 65 Warnings May Not Be.
On January 8, 2021, the Office of Environmental Health Hazard Assessment (OEHHA) proposed changes to how businesses warn under Proposition 65. I wrote about it back in February 2021 and explained why the agency’s proposal to change short-form warnings would negatively impact businesses by way of increased costs and unnecessary liability and yet still fail to address the Prop 65 overwarning problem – something the agency intended to fix with the rulemaking.
CalChamber and the Consumer Brands Association (CBA) led an industry coalition of 119 organizations pushing back against the proposed changes, arguing the rulemaking should be rescinded because the proposal was flawed, relied on faulty data, was contrary to regulatory assurances made by OEHHA to all stakeholders when first overhauling Article 6 warning provisions in 2018 and failed to achieve OEHHA’s stated of addressing Prop 65 overwarning.
After almost one year since the rulemaking began, OEHHA recently noticed its plan to move forward – but with some notable modifications that appear to have been made in direct response to CalChamber and CBA industry coalition comments.
Short-Form Size Limitation Increases From 5 Square Inches to 12 Square Inches
The coalition argued that the agency does not explain nor provide evidence to justify why a 5-square inches or less requirement is the appropriate cutoff. CalChamber and the coalition articulated that such a policy change deviated from OEHHA’s own most recent guidance telling businesses that Article 6 had “no size limitations for which products could utilize short-form warnings.” The regulated community relied on these express statements when spending significant time and resources overhauling their Prop 65 compliance programs.
Under the modified approach, OEHHA proposes to increase the maximum label size for short-form warnings from 5 square inches to 12 square inches, explaining that “after considering these comments, OEHHA determined a 12 square inch limit would accommodate [–] concerns, while still limiting use of the short-form warnings to packages with limited available label space for consumer product information that would not easily accommodate the full warning.”
Flashback to Reason magazine in 1987: “Proposition 65 is a lawyers’ welfare act. I don’t think it will have any effect on public health.”