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

Dear OEHHA Committee, We object to the proposed Proposition 65 labeling requirement updates for the following reasons: 1) The requirements are arbitrary and show no consideration to labeling requirements associated with other compliance laws and organizations. 2) Eliminating the ability for a manufacturer to incorporate the short form text on product labeling causes undue hardship and cost to manufacturers. Per the revise text of §25602(a)(4)(A), “The short-form warning may only be used if: The total surface area of the product label available for consumer information is 5 square inches or less…”. This statement leaves several unknowns including, but not limited to: 1) Is this total area a continuous total area or does the requirement extend to products where the 5 square inches is calculated over multiple surfaces? This is unclear and depending on the intention likely not practical. If multiple surfaces are needed to apply all product marking requirements, this will require multiple labels, each incurring layout and material costs. This adds a huge cost burden to manufacturers. 2) What is considered a viable surface when considering this area, and who makes the determination on whether or not the surface is viable? For example, would curved surfaces or hot surfaces be considered? 3) There has been no consideration of markings required by, for example the NFPA 70 (National Electrical Code (NEC)) or standards/codes required by National Recognized Testing Laboratories (NRTL) for Listed products. Compliance to the NEC often requires products to be Listed by an NRTL, and these Listings require a myriad of labeling requirements. The State of California has adopted the NEC and other NFPA Codes into law to address shock, fire and casualty hazards. Therefore, the labeling requirements of Proposition 65, do not have precedence over the labeling requirements necessary to comply with other Laws in the State of California. For companies manufacturing electrical or electronic products, it is highly likely that Listing through an NRTL is necessary. There is only limited space for labeling on these products. This update to the labeling requirements of Proposition 65 only takes into consideration of the overall label size and not the consideration of the space necessary for all required markings. Per the revision to §25603(b) manufacturers will now be required to state “One or More Chemicals” that are known carcinogens and/or reproductive toxicants to the short form marking. Our objection to this update is based on clarity and potential cost of testing. 1) Please clarify when only one chemical is allowed to be placed on the label, or when more chemicals are required to be stated? a. For instance, if a chemical is both a carcinogen and a reproductive toxicant, but there are also chemicals that are only carcinogens or reproductive toxicants, can a manufacturer state only the chemical that is both a carcinogen and reproductive toxicant? 2) With the previous short form which did not include the requirement to list a chemical, it was clear that we only needed to test if we wanted to absolve ourselves from placing any marking on the product. This is no longer clear, and we have the following questions: a. If a manufacture believes a listed chemical is present but is not certain, is testing necessary to confirm the manufacturer’s belief? For example, PVC insulated wiring is known to contain chemicals listed, but are manufacturers required to test to confirm the statement? b. Along the same lines, is a manufacturer required to test to determine all components that may be present? As you know, testing of this nature is extremely expensive and a burden to companies who have struggled in the current pandemic crisis. We do not believe it is the committee’s intention to place unnecessary financial burden on an already delicate economic situation. However, the revisions made to this legislation have inadvertently done just that. Manufacturers are not using the currently allowed short form wording as a shortcut to the extended wording. We are using the short form because it is not feasible to use the long form on product labels. Here is our suggestion. Continue to allow the current short form wording to be placed on product labeling if the manufacturer’s instruction manual contains the long form information.