Alliance Joins Comments Against California Prop-65 Changes

By Sara Osorio

This article was originally published on the PRINTING United Alliance website.

On October 27, 2023, the California Office of Environmental Health Hazard Assessment (OEHHA) issued a Notice of Proposed Rule Making to amend the Safe Drinking Water and Toxic Enforcement Act of 1986, better known as Prop-65. Prop-65 requires businesses to provide a “clear and reasonable” warning on products that contain chemicals exceeding an established safe harbor level and have been deemed to cause cancer or reproductive toxicity by the state. There are approximately 900 chemicals currently listed under this program.

Currently, Prop-65 gives regulated businesses the option of using the short-form warning or long-form warning on their product. Unlike the long-form, the short-form warning does not require companies to identify any specific chemicals listed under Prop-65. With the proposed revision, OEHHA is looking to amend the short-form warning requiring companies to identify at least one specific listed chemical that a consumer could be exposed to.

PRINTING United Alliance opposes these changes to the short-form warning because they would impose a significant burden on businesses. The Alliance signed onto two separate coalition comment letters, both in opposition to these proposed amendments. The comments stated OEHHA did not adequately justify the revision that it would provide consumers with useful information. Another point made is that the proposal does not address the root cause for why companies use the warning due to the thousands of “bounty hunter” suits brought against companies for not providing a warning. The analytical techniques available today do not provide assurance that a regulated chemical cannot be found in a product even if no covered chemicals are used in its manufacturing. Although the public comment period ended on December 20, 2023, the Alliance is closely monitoring all developments related to these proposed changes.

These proposed rule changes are expected to have direct and indirect impacts on the printing industry. Suppliers to the industry will be most impacted if they are using the short-form warning as they will now need to identify one of the 900 listed chemicals under Prop-65 and revise their product labels. They may also have to conduct extensive testing to determine if any of the regulated chemicals are present in their product. Label printers and web-to-print businesses will also be affected if they sell products directly into the state of California and are using the short-form warning as they will have to revise their product labels. The other significant impact will be felt on print customers who may have to include a warning statement on their products. The Alliance regularly gets inquiries from members who are trying to respond to customer requests about the need to put a warning label on their product.

OEHHA’s reasoning for these changes is to make the short-form warning “more informative to consumers.” The agency says that the short-form warning was originally intended only for the use on small packaging that would not fit the long-form warning. However, they state this has had the unintended consequence of overuse of the short-form warning on packaging regardless of size. The agency claims that businesses are using the short-form warning as a litigation avoidance strategy regardless of whether the product contains any of the listed chemicals or not. It is their contention that this does not provide relevant hazard information to consumers because it dilutes impact. OEHHA believes that requiring businesses to identify a chemical exposure on their short-form warning will eliminate what is suspected to be “over warning” and companies will conclude that a warning is not necessary thus making the warnings more meaningful.

In addition to requiring businesses to identify at least one chemical in the short-form warning, there are other significant proposed changes. First, it will only allow the use of the short-form warning on products with five square inches or less of label space. Second, it expands requirements for products sold online or through a catalogue by requiring a warning on the website or catalogue as well as on the product itself. Finally, it allows for the use of the short-form warning for food products. If passed, there will be a two-year phase in period for the changes.

If these new regulations are implemented, they are expected to have a big impact on businesses, especially small businesses. The short-form warning currently provides protection against bounty hunters who serve violation notices with questionable merit. Anyone can initiate a Prop-65 claim, and once a listed chemical has been identified, burden shifts to the business to prove that the level of exposure does not warrant a warning. When this happens businesses usually choose to settle with the bounty hunter rather than go forward with the heavy cost and risk that comes with litigation. The Alliance is closely monitoring the developments related to the proposal and report on the final rule, if one gets issued.