Newly proposed regulatory changes to Proposition 65 short-form warning labels represent a pronounced shift from current rules and add a new layer of litigation exposure for businesses struggling to comply with a host of other mandates amid the COVID-19 pandemic.
The Office of Environmental Health Hazard Assessment (OEHHA) made the announcement on Jan. 8.
“The proposed changes to the short-form warnings are very significant despite OEHHA framing them as merely ‘clarifying’regulations,” Adam Regele, CalChamber environmental policy advocate, told the Northern California Record by email. “The reality is that the proposed changes will require thousands of California companies already warning under Prop 65 to revise their warning labeling programs, once again, after having just gone through a major regulatory overhaul a little over two years ago.
As written, the changes could result in significant costs and legal liability for California businesses.
“This type of costly regulatory overreach, especially during a global pandemic, is why more and more businesses are leaving California,” Regele said.
Written comments on the proposed changes are due by March 8, according to an OEHHA news release.
The compliance bar is set high, which for many companies could mean overhauling their labeling programs to meet the new requirements.
“Only two years ago, OEHHA told companies that they could provide a short-form warning on products of any size, so long as the warning was included on the product itself or its packaging or exterior wrapper,” Regele said. “In its May 2019 Q&A for businesses on new warning requirements, when asked whether this warning could be used on any sized product, OEHHA responded that ‘[t]here is currently no limitation on using the short-form warning on larger products.’ Companies relied on the plain language of the regulations and OEHHA’s written responses to overhaul their Prop 65 warning labels and be in compliance.”
Implementation could get expensive – changing Prop 65 labels is not a simple matter, especially when labeling is subject to many state and federal requirements.
“It is a costly process, both in terms of legal and scientific expertise needed to redo the warning labels, as well as litigation risks from private enforcers,” Regele said.
The regulations, which have not been finalized, contain potentially ambiguous information.
“For example, the proposed regulations mandate a 5-square-inch label limitation, yet OEHHA provides as an example a new short-form warning label measuring 3 inches by 1.75 inches, or .25 inches beyond the proposed size limitation,” Regele said. “The complicated technical nature of Prop 65 warnings coupled with these types of inconsistencies in the proposed regulations will inevitably result in more confusion and Prop 65 litigation, with particularly devastating impacts to small businesses.”
The impact could create new issues throughout the California supply chain.
“OEHHA’s initial determination that the proposed regulations ‘will not have a significant statewide adverse economic impact directly affecting businesses’ is incorrect,” Regele said. “The proposed regulatory changes will not decrease the ‘over-warning’ happening under Prop 65 but instead increase costs on businesses at a time when many are struggling or unable to even operate.”