Comment Submissions - Notice of Proposed Rulemaking: Amendments to Article 6, Clear and Reasonable Warnings Short-form Warnings

OEHHA, The Notice of Proposed Rulemaking (“Notice”): Article 6, Clear and Reasonable Warnings Amendments Related to Short-Form Warnings for Consumer Product Exposures proposes changes that are unnecessary, ineffective, and overly burdensome. Additionally, the cost impact assessment provided with the notice is erroneous, 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 the short-form 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 or purchase new packaging and update websites, catalogs, ERP systems, and more. OEHHA states in the Notice that it is “not aware of any cost impacts that a representative private person or business would necessarily incur…” when complying with the new rules. This is far from accurate. Any business that has faithfully complied with the rules pertaining to short-form warnings will be required to modify those warnings, whether they be on products, in catalogs or on websites. In the case of Hornady Manufacturing Company, this means creating new artwork for hang tags, boxes, labels, and other packaging, then ordering quantities of the new packaging. It also means that product warnings on websites must be updated, which will be labor-intensive. Finally, we must update the product compliance data in our ERP system to reflect the new warnings. Hornady Manufacturing Company, a Small Business according to Small Business Administration Standards, estimates that it would incur costs of between $50,000 and $100,000 to make the changes that would be required under the proposed rule. The Notice also states that the intent of the rule change is to provide “clarifying guidance”, which is an inaccurate statement. The proposed rule 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. Finally, the Notice states that the benefits of the proposed changes include “…providing more meaningful information regarding… exposures to listed chemicals.” 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.