As any parent understands, you come to rely on certain adages or pronouncements when you want your children to understand your exasperation with their behavior. A favorite around the Collatz household over the years has been, “The definition of insanity is doing the same thing over and over again, but expecting different results.” It has gotten to the point that I can begin that sentence and get an eye roll and completion of my mantra before the words are actually out of my mouth. If I said the same thing to our friends at the California Office of Environmental Health Hazard Assessment (OEHHA), I wonder if I would get a similar response?
As most of you are probably aware by now, OEEHA published its final revision to the Prop 65 labeling laws in late August. The original regulation has been around for more than three decades and its ubiquity on packaging labels (both in California and nationally) or at pretty much anyplace California consumers might gather (anywhere from gas stations and dry cleaners to Disneyland and Dodger Stadium) has over time desensitized the state’s populous to the message OEEHA is trying get across.
A couple of years ago, agency management seemed to begin to finally acknowledge that problem. What was their approach to addressing it? Complicate it with more information on the label, of course. Seems my daughters and California regulatory agencies sometimes use a similar line of thinking.
It could have been worse. There has been significant negotiation over the two years since OEEHA introduced the first revision proposal. It included four varying proposals, several workshops, and hundreds of comments from affected manufacturers, retailers, associations, coalitions of various organizations, and the general public.
What are some of the critical changes that will need to be incorporated into the new label warnings? First, all warnings must include a symbol consisting of a black exclamation point in a yellow equilateral triangle with a bold black outline. Given that yellow ink for the warning would increase labeling costs, OEEHA agreed to allow just a black and white symbol if yellow is not used anywhere else on the label. In addition, the word WARNING will have to be placed very close to the pictogram.
The new OEEHA Prop 65 website, www.P65warnings.ca.gov, must be referenced. If there is information in the instructions or on the package in a language other than English, the warning must also reflect that language. If the product is being listed on the internet, warnings must be provided on the product display page in an easy-to-find place.
One area that changed significantly in the final version of the rule was the wording of the warning and whether a formulator will actually have to call out a specific Prop 65-listed chemical in the product that has resulted in generating the warning. As you might remember, in OEEHA’s original proposal, there was a list of 10-12 chemicals of which at least one would have to be named specifically within the warning label if it was an ingredient in the product. Over the two-year negotiation, the list of chemicals changed and was marginally reduced; eventually, OEEHA said a manufacturer could choose any chemical in the formulation that triggered the warning on the label.
The final rule allows for a manufacturer to choose how they present this information. One way is to specify a chemical in the formulation, so the warning would read: This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause birth defects or other reproductive harm. For more information, go to www.P65warnings.ca.gov.
In its final rule, OEEHA offered a second truncated warning option that allows for the elimination of identifying a chemical and reads: WARNING: Cancer and Reproductive Harm- www.P65Warnings.ca.gov. (The statement needs to only mention “Cancer” or “Reproductive Harm” if the warning is provided for only one of those endpoints.)
Let’s face it, neither one of these alternatives is close to perfect. But it did get me to thinking about how most manufacturers will address the choices. It seems to me the dilemma is this: Do you mention an innocuous chemical (there are certainly a few of those on list that has grown to almost 900), or go with the truncated warning that has less information but could provide more menacing implications?
This is a question that adhesives and sealants manufacturers will be wrestling with during the coming year. The Adhesive and Sealant Council will try to help our members work through that decision making process.
Whatever finally is decided, the one thing I’m pretty sure of is that, somewhere down the road, our friends in Sacramento will come up with something else (how about the CAS Number or even better yet the chemical formula) to put on the label because they will have become absolutely convinced it will make consumers safer. Why? It’s California’s way of defining insanity. ASI
Any views or opinions expressed in this column are those of the author and do not represent those of ASI, its staff, Editorial Advisory Board or BNP Media.