Upcoming Deadline to Comment on Proposed Amendments to Prop. 65 Short-Form Warning Regulations
By Lauren Mendelsohn
January 19, 2022
Recently, California’s Office of Environmental Health Hazard Assessment (OEHHA) modified its latest proposal to amend several regulations pertaining to consumer product warnings under Proposition 65, including California Code of Regulations, Title 27, Section 25602, Consumer Product Exposure Warnings – Methods of Transmission; Section 25603, Consumer Product Exposure Warnings – Content; and Section 25607.2, Food Exposure Warnings – Content. Originally the public comment period was scheduled to close on January 14, 2022; however, this date was extended to January 21, 2022 to allow more time for public participation considering the holidays that occurred during the comment period.
For some background, Proposition 65, more formally known as the Safe Drinking Water and Toxic Enforcement Act of 1986 (codified at Cal. Health & Safety Code § 25249.5 et seq.), requires businesses to provide clear and reasonable warnings on or with any products that could expose consumers or employees to chemicals known by the state of California to cause reproductive toxicity or cancer, unless a “safe harbor” level has been set and the amount of exposure is below that level. OEHHA maintains lists of these chemicals online (known as the “Prop. 65 list”).
Proposition 65 is particularly relevant to cannabis and hemp operators since Δ9-THC, marijuana smoke, and various terpenes are on the Proposition 65 list, necessitating a compliant, clear and reasonable warning. The relevant regulations do allow for an abbreviated warning called a short-form warning, which is what most cannabis operators use on their packaging since the full long-form warning would take up too much room on the label. It is these short-form warning regulations that are the subject of the current rulemaking action.
(It must be noted that separately from this rulemaking action, OEHHA proposed last year to create new Prop. 65 warnings specific for cannabis smoke and Δ9-THC, which we discussed in a previous blog post here. As of right now the agency has not adopted those proposed regulations, though they could at any point.)
The major changes between the OEHHA’s January 2021 proposal, which we previously wrote about here, and the December 2021 amendments, are:
- The maximum label size for the short-form warning has been modified from 5 inches to 12 inches.
- The short form warning could continue to be used for websites and catalogs, if the short-form warning is used on the label. OEHHA originally proposed disallowing this, which is currently acceptable.
- “CA WARNING” or “CALIFORNIA WARNING” could be used instead of, or in addition to, the word “WARNING” to indicate to consumers that the Proposition 65 warning is required under California law.
- A new warning option with slightly different language has been proposed for carcinogens and reproductive toxicants.
- Some commenters found the term “product label” to be confusing, so OEHHA has simplified this to “label” in most places.
You can access the text of the proposed regulatory modifications, as well as the notices that were issued announcing and extending the public comment period, below:
- Notice of Modification of Text of Proposed Regulations: Proposed Amendments to Article 6 Clear and Reasonable Warnings – Short Form
- Article 6 Clear and Reasonable Warnings Amendments Related to Short-Form Warnings for Consumer Product Exposures
- Notice of Extension of the Public Comment Period for Proposed Modification of Text: Proposed Amendments to Article 6 Clear and Reasonable Warnings – Short Form
Comments from the public are due on January 21, 2022. Information on how to submit a comment for the official rulemaking record can be found on the OEHHA website. Our office can assist in preparing and submitting effective comments to OEHHA, as well as helping businesses navigate Proposition 65’s requirements.
Stay tuned to our blog for further updates on this topic.
Learn more about our Proposition 65 compliance and enforcement services here.
This information is provided as a public educational service and is not intended as legal advice. For specific questions regarding compliance with Proposition 65 or other laws and regulations governing cannabis, please contact the Law Offices of Omar Figueroa at 707-829-0215 or info@omarfigueroa.com to schedule a confidential legal consultation.
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