California Proposes Changes to Prop 65’s Short Form Warning

The California Office of Environmental Health Hazard Assessment (OEHHA) has proposed significant revisions to California Proposition 65’s (Prop 65) short-form warning. Members of the sportfishing industry who may be impacted by these proposed changes are encouraged to provide written comments to OEHHA before the proposal’s comment period ends on March 29.

Background:
Current Prop 65 regulations, which went into effect in 2018, recognize a long-form and a short-form warning for consumer products. The short-form warning requirements currently allow businesses to omit the name of the chemical known to the State of California to cause cancer, birth defects or other reproductive harm, whereas the long-form warning must include the name of one or more chemicals on the Prop 65 list for which the warning is being given.

Under the proposed changes:

• Companies could only use the short-form warning if the product label is 5 sq. in. or less;
• Companies would be required to list at least one chemical on the short form; and
• Companies would be required to use the long-form warning on their website or in a catalog, even if the short-form warning can still be used on the product label.

These new requirements would go into effect one year after the date at which the proposal is approved.

For example, the following is a currently accepted short-form warning:

The following is an example of a short-form warning under the new proposal:

Your Opportunity to Weigh In
The American Sportfishing Association (ASA) strongly opposes this proposal and has joined with the California Chamber of Commerce and the National Association of Manufacturers to submit our opposition to the proposal.

Individual ASA members who would be impacted by this proposal should submit written comments to OEHHA by March 29. You are encouraged to customize your comments based on specific impacts to your business, but may use the following points as a guide:

• My company complies with OEHHA’s 2018 regulation, which provided the option of a short-form warning label. Despite OEHHA’s statement at the time that those changes were being done to “provide certainty for businesses,” the new proposal would force my company to retool and reprint product labels, revise the website, update catalogs and instruct distributors and retailers.
• Overhauling the short-form warning requirements will not address the stated problem of “over-warning.” It will instead just create more confusion, more litigation and impose more costs on businesses.
• The proposed change has not been sufficiently justified and OEHHA has not acknowledged the significant costs being imposed to businesses.
• OEHHA is creating more exposure to frivolous claims by private enforcers (commonly referred to as bounty hunters) about Prop 65 labeling. These bounty hunters frequently file illegitimate claims, yet companies like mine are forced to settle rather than challenge these claims due to the inordinate legal costs and time commitment associated with going to court.
• This proposal creates significant instability in an already unstable business environment due to the COVID-19 pandemic.
• My company respectfully urges OEHHA to withdraw the proposed rule. 

For more information, please read the notice on the OEHHA website, or contact ASA’s Government Affairs Vice President Mike Leonard.