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OEHHA Examines the Use of Short Form Warnings

Short form warnings are a new construct of the Proposition 65 amendments that became effective on August 30, 2018. According to Section 25603, companies subject to the warning requirements may use a truncated short form warning on a label of a product requiring a clear and reasonable warning. It can be “affixed or printed on a product or its immediate container or wrapper.” Now California’s Office of Environmental Heath Hazard Assessment (OEHHA) is evaluating the use of short-form warnings under Proposition 65. There is some indication that short-form warnings may undergo changes to continue to be used as an avenue for businesses to provide Proposition 65 warnings.

Proposition 65 requires companies to provide “clear and reasonable” warnings prior to exposing individuals to listed chemicals. Under the new safe harbor warning regulations for consumer products, companies may use either the “long form warning,” which requires the identification of the listed chemical being warned for, or the truncated “short form” warning. Both the long form and the short form warnings require the use of the new Proposition 65 triangle symbol followed by “WARNING:” in bold all caps.

But the similarities end there. The short form warning alternative enables companies to apply a much simpler warning directly on products. For example, a short form warning for cancer would read: “Cancer –”  The new regulations impose additional requirements for location and font size for short form warnings, but does not require the identification of the chemical being warned for.

Although the short form warning was developed in response to industry concerns about providing warnings for small products with limited label space, the new regulations do not otherwise restrict the use of this alternative. As OEHHA has stated, “[t]here is no express prohibition, however, on using the short-form warning on larger products.”

During a conference on U.S. state-level actions, the use of short form warnings was subject to questioning. Specifically, the absence of express restrictions for the use of short form warnings appears to be a source of concern to OEHHA. Indeed, it can be applied to products or packages that are not “small” in size. OEHHA verified that it is examining the continued use of this provision but no final decision has been made. Amendments to this rule, like all other revisions, would require formal action including a public comment period.

Grimaldi Law Offices has been advising clients for over 20 years on chemical and product law. For knowledgeable advice and in-depth analysis on your Proposition 65 compliance obligations, contact Grimaldi Law Offices at (415) 463-5186 or email us at [email protected].

Ms. Grimaldi maintains a diverse environmental law practice focusing on chemical and product regulation and litigation defense. Her practice areas include Proposition 65, California's Safer Consumer Products Regulations, California's Rigid Plastic Packaging Container Act and the federal Toxic Substances Control Act. Ms. Grimaldi graduated from the University of California Hastings College of the Law magna cum laude and holds a Bachelor of Science Degree in Bacteriology from University of California, Davis. Prior to attending law school, she worked as a research assistant in laboratories at the University of California, San Francisco Cancer Research Institute and at the University of California, San Francisco School of Medicine.