California's Proposition 65, designed to protect consumers from exposure to harmful chemicals, may undergo a significant transformation as the state's Office of Environmental Health and Hazard Assessment (OEHHA) introduces a notice of proposed rulemaking. The proposed changes aim to enhance the informativeness of short-form warnings by requiring specific chemicals to be listed, which has long been a priority for OEHHA.
Current Proposition 65 Requirements:
Under Proposition 65, businesses in California are obligated to furnish "clear and reasonable" warnings before knowingly exposing consumers to chemicals listed for their potential to cause cancer, reproductive harm, or both. The warnings can be provided in either long or short form, offering flexibility to businesses in communicating potential risks associated with their products.
OEHHA's Proposed Rulemaking for Short-Form Warnings:
OEHHA's notice of proposed rulemaking, issued on October 27, 2023, targeted a fundamental change in the short-form warnings. The objective was to make these warnings more informative to consumers by mandating the inclusion of specific chemicals associated with potential harm. The proposed overhaul addressed concerns about the current practice where businesses often use a general warning for various products, leading to potential overuse and reduced transparency.
Unfinished Regulatory Review in 2022:
The push for reform in short-form warnings had been an ongoing endeavor for OEHHA. In 2022, the regulatory review process halted previous attempts to amend requirements. The latest proposed rule signaled a renewed effort to enhance the transparency of Proposition 65 warnings and align them with the broader goal of consumer protection.
Addressing Overuse and Increasing Transparency:
One of the critical issues with the current short-form warnings is their generic nature, lacking specific identification of the chemical prompting the warning. OEHHA believed this had resulted in overuse, allowing businesses to apply a single warning to multiple products. The proposed addition of specific chemicals aimed to provide consumers with more detailed information, empowering them to make informed decisions about their exposure to listed chemicals in consumer products.
Impact on Businesses and Compliance Burden:
If the proposed rule is adopted, businesses will need more specific short-form warnings, diverging from the current one-size-fits-all approach in Proposition 65. This elevates the compliance burden, requiring evaluations and potential product testing. APA Engineering's GreenCheck for Prop65 offers a streamlined solution, automating the identification of chemicals needing warnings and easing compliance.
Public Comment Period and Timeline:
The public comment period for the proposed rule was set to conclude on December 20, 2023, with a public hearing scheduled for December 13, 2023. If adopted, the new warning requirements will apply to all new products within two years of adopting the proposed rule, signaling a timeline for businesses to align with the enhanced transparency and specificity in Proposition 65 short-form warnings.
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