For businesses selling goods in California, big changes are coming to small Prop 65 warnings

Changes to the popular “short-form” warning option for businesses complying with California’s Proposition 65 are on the horizon, and will likely make that warning longer and more difficult to use. Other important changes are on the way too.

Proposition 65 requires businesses to provide “clear and reasonable” warnings before knowingly and intentionally exposing California consumers to one of over 900 chemicals listed as “known to the State” to cause cancer or reproductive harm. In 2018, CalEPA’s Office of Environmental Health Hazard Assessment (OEHHA), which implements the law, enacted changes to its safe harbor regulations, making the standard safe harbor warning language longer and more specific, but also introducing a “short-form” warning option with less language and a broad scope: it covered all exposures and did not require users to specify a listed chemical.

Big changes to small warnings

With no restrictions on its use, the short-form warning quickly became the overwhelming favorite for compliance with Proposition 65’s warning requirement. If OEHHA’s proposed revisions are implemented, that may change. On October 27, 2023, OEHHA proposed several amendments to its “safe harbor” warning regulations under Proposition 65, including:

1. Short-form warnings must identify a specific chemical in the text of the warning.
2. The text of the short-form warning will include additional text, including a new option for it to read “Risk of cancer from exposure to [chemical].”
3. Warnings for foods may employ the new short-form text, but categories for which OEHHA has or will provide specific warning language, including alcoholic beverages, dental devices, furniture, etc., cannot.
4. Products sold online will now require warnings online and on physical packaging or labeling
5. New warning language for vehicle and boat parts.

Because OEHHA’s proposal would require short-form warnings to include the name of at least one chemical listed under Proposition 65 to which the product exposes users, many businesses will face complex decisions about the identification of a chemical that could render the short-form option less appealing. The revised short-form warning would also get less short. OEHHA proposes requiring additional language stating: “[cancer and/or reproductive harm] risk from exposure to [chemical]” or “can expose you to [chemical], a [carcinogen and/or reproductive toxicant].”

The proposal also may add some gray area regarding warning size, eliminating the requirement that the type size of the warning has to be “no smaller than the largest type size used for other consumer information on the product” in favor of a general requirement applicable to all warnings that the type be “prominently displayed” so as to “render the warning likely to be seen, read and understood by an ordinary individual under customary conditions of purchase or use.” Short-form warnings must still employ no smaller than 6-point type.

If adopted, the rules would apply to all new products “manufactured or labeled” within two years of adoption.

Short-form warnings for food products

The proposal adds subdivision (b) to section 25607.2 to expressly permit food products, which includes dietary supplements, to employ either of the two new short-form warning options. The short form options are as follows:

[CA] WARNING: [Cancer risk and/or risk of reproductive harm] from exposure to [name of chemical]. See www.P65Warnings.ca.gov/food

[CA] WARNING: Can expose you to [name of chemical], [a carcinogen and/or reproductive toxicant]. See www.P65Warnings.ca.gov/food

Unlike the short-form option for all other consumer products, the short-form warning for food does not require the triangle hazard symbol. Additionally, the URL directs to OEHHA’s website for food warnings.

Two warnings for products sold online

OEHHA also seeks to formalize its position that warnings for products sold over the internet must be displayed online and additionally, “on or with the product when delivered to the consumer,” which may include a warning affixed to any “written, printed, graphic, or electronically provided communication that accompanies a product, such as a package insert.” Previously, the regulations did not clearly specify that warnings were required online and on packaging or labeling.

The proposal would also adopt similar rules for products sold in catalogs.

Other changes

The proposal contains several other changes to the safe harbor warnings for Proposition 65, including:

• “CA” specific warnings. The proposal would permit the use of the designation “CA WARNING” or “CALIFORNIA WARNING” in both short- or long-form warnings.
• Product-specific warnings now mandatory. The proposal would clarify that the product category and food-specific warnings contained in sections 25607 et seq. are mandatory.
• Mandatory conspicuousness. All warnings, both generic and product-specific, standard or short- form, must now comply with the “conspicuousness” requirement.
• Warnings for vehicle and boat parts. The proposal would also add new sections 25607.50, 25607.51, 25607.52, and 25607.53 to create tailored warning methods and content for exposures to listed chemicals from passenger or off-highway vehicle parts and recreational marine vessel parts.

OEHHA has scheduled a public hearing on the proposal for December 13, 2023 at 10:00 a.m. Public comments must be received by December 20, 2023.

Find out more about the implications of this alert for your business by contacting any of the authors.