Regulations frequently change and keeping up with the constant cycle can be difficult. Not only that, but discerning which changes are real and which aren’t can prove difficult, especially when you have other equally important matters to attend to. That’s why it’s advantageous to rely on experts rather than headlines for regulatory information and product compliance insights.

On May 20, 2022, the California Office of Environmental Health Hazard Assessment (OEHHA) announced that it was allowing proposed rulemaking to amend the short-form Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) warnings to lapse. This followed a temporary extension, provided by the governor’s executive orders, to the one-year rulemaking period. While this may appear to be a relief for manufacturers, a deeper reading of the situation and OEHHA’s intentions reveals that this is just a short-term pause in the tightening requirements.

What Is Proposition 65?

California’s Proposition 65 is a law designed to protect drinking water from toxic substances, including those that cause cancer and birth defects. It also prohibits businesses from knowingly exposing individuals to listed substances without providing a “clear and reasonable warning” prior to purchase. 

California publishes a list of these hazardous substances in accordance with Proposition 65’s requirement and must update the list at least once per year. The list has grown to include over 900 substances since it was first published in 1987.

While Proposition 65 doesn’t prevent a company from selling its product in California, requirements under the act apply to any business in the chain of distribution (including manufacturers, distributors, and retailers) as well as out-of-state companies selling into California.

What Are Short-Form Warnings?

The “clear and reasonable warning” requirement is most commonly met using a warning label on the product as well as through e-commerce sites. There are two versions of these warning labels: a full “long-form” version, which includes more detail about the contained substances in a product, and a “short-form” abbreviated version that is more generic.

While the OEHHA intended the short form to be used when a product or packaging is too small for the long form, the regulation doesn’t actually restrict the use of the short form. Many businesses have opted to utilize short-form warnings instead of long-form warnings, sometimes regardless of the size or shape of their products.

Curious about the labeling requirements pertinent to your industry or business? Download our guide, Your Guide to Understanding Proposition 65 Labeling Requirements, to learn more.

What Was the Proposed Amendment?

On January 8, 2021, proposed amendments to short-form Proposition 65 warnings were introduced. Updates to the proposal, based on public comments, were issued in December 2021 and then again in April 2022. However, according to California law, a rulemaking must be completed within one year of it being introduced. The timeline was temporarily extended by executive order due to the COVID-19 pandemic but even with that extension, time ran out in May 2022. The OEHHA has stated that they intend to “…restart the rulemaking process on the short-form with a new regulatory proposal, informed by comments on the previous proposal…”

The latest proposed version (updated in April 2022) offers some key changes to the short form, including:

  • A requirement to list at least one hazardous chemical in the product
  • A requirement for the type size to be no smaller than six-point type
  • Changes to some of the verbiage used in the warnings
  • An extension of the implementation timeline from one year to two

A Moving Target

After the rulemaking lapsed, articles cropped up framing the discussion as though the effort is dead in the water, creating the false presumption that businesses do not need to worry about short-form warning changes. However, despite the fact that the amendment lapsed, the OEHHA intends to restart the rulemaking process and resubmit the proposal.

In this way, headlines often take on the guise of a moving target. As such, devising business strategies based on headlines can be risky and ultimately result in more hassle and risk than benefit. That is why having access to regulatory experts is so important.

The Importance of Expertise

Keeping track of changing regulations is a full-time job. For manufacturers that have other concerns and focuses, this additional stress can sometimes be too much to do alone. That can result in reliance on premature advice from headlines.

With experts, you can get the accurate information you need without worrying about the stress of acquiring it. At Assent, our experts have decades of experience tracking global product regulation changes and implementing programs for compliance, from Proposition 65 to the Toxic Substance Control Act (TSCA), and beyond.

If you have questions about how Assent’s experts can help you attain more defensible supply chain data, thereby ensuring market access and mitigating potential risks, contact us at info@assent.com.

Cally Edgren
Director, Sustainability, Assent Inc.

Cally is a proven compliance program leader with experience developing, communicating, and executing company goals and strategies. She is a subject matter expert on product  Read More

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