Comment Period - Notice of Modification to Text of Proposed Regulation Title 27, California Code of Regulations Proposed Amendments to Article 6 Clear and Reasonable Warnings – Short Form

OEHHA, The Notice of Proposed Rulemaking (“Notice”): PROPOSED AMENDMENTS TO ARTICLE 6 CLEAR AND REASONABLE WARNINGS – SHORT FORM proposes changes that are unnecessary, ineffective, and overly burdensome. Additionally, the cost impact and the asserted benefits of the proposed action are overstated. Businesses have just recently completed an expensive implementation of changes required by OEHHA’s revision of the Proposition 65 legislation, which had an effective date of August 30, 2018. At the time of that revision OEHHA made available a “short-form” version of the safe harbor “clear and reasonable warning”. Many companies have made use of this warning, particularly in consideration of the document PROPOSITION 65- CLEAR AND REASONABLE WARNINGS- QUESTIONS AND ANSWERS FOR BUSINESSES published by OEHHA in August of 2017 which stated, “There is no express prohibition… on using the short-form warning on larger products.” In 2019 OEHHA updated the document to say that the use of the short-form warning is being monitored to determine if the regulation should be amended; however, the guidance still states, “There is currently no limitation on using the short-form warning on larger products.” Under the proposed rule manufacturers who have complied with the most recent revision to the Proposition 65 regulations will once again be required to re-label all products containing the short-form warning. This will in most instances involve costs to create artwork, print new labels, purchase new packaging, update websites, catalogs, ERP systems, and more. Hornady Manufacturing Company, a Small Business according to Small Business Administration Standards, estimates that it would incur costs of approximately $895,000 to make the changes that would be required under the proposed rule. Finally, we would point out that listing the name of the chemical does not provide information meaningful to assessing consumer risk at the point of sale. Providing the endpoint hazard (cancer or reproductive harm) does provide information useful in making an informed decision and is already required by the regulation. The proposed rulemaking reverses earlier guidance and imparts significant changes to what was already a sufficiently clear regulation. It seems that the actual intent of the rulemaking may be to provide additional layers of minutia designed to support increased citizen enforcement and attorney revenue.