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California Proposes Changes to the Proposition 65 Short-Form Warning

Date: January 19, 2021

On January 8, California’s Office of Environmental Health Hazard Assessment (OEHHA) released a proposal to amend the Proposition 65 regulation by placing limitations on when Proposition 65 short-form warnings can be used and updating short-form warning content requirements. If your company produces aftermarket vehicle parts, this proposal could impact your company and require you to make changes to your Proposition 65 warnings. During the last Proposition 65 reform in 2016, MEMA and AASA submitted comments, provided testimony and met with OEHHA officials advocating on behalf of motor vehicle suppliers. MEMA and AASA will plan to engage with California on this rulemaking and submit comments, due on March 8, 2021.

Key changes to the Proposition 65 regulation include:
•    Requiring that short-form warnings now name at least one Proposition 65 listed chemical.
•    Restricting the use of short-form warnings to products with no more than 5 square inches of label space and where the full package cannot accommodate the full Proposition 65 warning.
•    Eliminating the ability of Internet and catalog postings to rely on short-form warnings.

If OEHHA finalizes the proposal to revise requirements of short-form warnings, the regulation would require companies to identify at least one Proposition 65 chemical in the warning (such as lead, nickel, BPA, etc.) either in the short-form warning or requiring companies to provide a full Proposition 65 warning. The proposal would make it significantly more expensive and difficult for companies to provide Proposition 65 warnings, especially companies like motor vehicle suppliers that have numerous products and/or have complex supply chains. The proposal provides a one-year, phase-in period after the regulation is finalized for companies to modify their short-form warning. The proposal also allows an unlimited sell-through period for products manufactured prior to the effective date (one year after the regulation is finalized). OEHHA’s Notice of Proposed Rulemaking cites as the basis for the proposed change, wide-spread use of short-form warnings on products of all sizes and the lack of adequate information regarding specific Proposition 65 chemical exposures. OEHHA also suggests that use of the short-form warning is allowing for “over-warning” where companies are placing the warning on their product without any knowledge as to whether their product requires a Proposition 65 warning.

If you are interested in providing input to MEMA’s comments on California’s proposal, please contact Laurie Holmes.

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