California Reviews Proposed Changes to Proposition 65 “Short Form” and Online Warnings; Extends the Compliance Period | JD Supra

It has been approximately eight months since the California Office of Environmental Health Hazard Assessment (OEHHA) last proposed to amend its Prop 65 regulations on“short form” and Internet warning provisions. Now, in response to extensive public comments, OEHHA is again reviewing the proposed changes, specifically to:

• Increasing the time for implementing the revised short-form warning content from two years to three years;

• Revert to the original text of the regulation for most website and catalog warning content; AND

• Include a new provision which, during the three-year implementation period of the proposed amendments, would provide Internet sellers with 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 content of the warning.

While OEHHA proposes to extend the implementation period, the revised proposal does not change the substantive changes the agency is pursuing regarding the short form warning. In particular, changes would require“short form warning’ to be significantly shorter by requiring the identification of at least one specific chemical for which the warning is given and to use longer text than is required for the current short form warning. Our draft of the revised short notices proposed rulemaking can be found here.

Contrary to Internet and catalog warnings, OEHHA is reversing course and largely returning 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“WARNING CALIFORNIA” on the display page of the product associated with the warning; OR
• Otherwise, the prominently displayed warning is given to the buyer before completing the purchase.

The proposal also emphasizes this“a warning does not appear prominently if the buyer has to look for it in the general content of the website.”

Interestingly, the proposed revisions would eliminate previously proposed language“clarify” that internet“Safe harbor warnings should also be included“on or with the product when delivered to the consumer.”

Finally, OEHHA will 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 the changes.

Broadly speaking, Prop 65 requires businesses to provide warnings to consumers before selling a product in California that may cause an exposure to a listed chemical. The law does not specify the text or methods required of the warning, except that the warning should be ​“clear and reasonable’ and given to the consumer before exposure. However, OEHHA regulations specify warning language and methodology for various product categories that, if used, are considered de facto in accordance (a/k/a“support warnings”). To avoid challenges, companies routinely use 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 the disclosure of a specific chemical, has resulted in its widespread popularity with manufacturers, distributors and retailers.

Comments on this proposal are invited from June 28, 2024. More information can be found on the OEHHA website here.

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