The Long and Short of It: Changes Proposed to Prop 65 Safe Harbor Warning Requirements

January 12, 2021

Businesses selling consumer products in California should be aware that California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed substantial changes to Proposition 65’s warning requirements. If adopted, the changes will impact many businesses’ Proposition 65 compliance strategies.

OEHHA’s proposed amendments have implications primarily for businesses using Proposition 65’s short-form warnings or selling food products in California. The amendments would restrict the use of short-form warnings to “small” products, require companies using the short-form warning to identify at least one listed chemical contained in their products per exposure pathway, and eliminate the use of short-form warnings for internet or catalog purchases, among other changes described below.

Background on Proposition 65

Proposition 65 requires businesses to provide a “clear and reasonable” warning to Californians about significant exposures to chemicals known to the state to cause cancer or reproductive toxicity. OEHHA maintains a list of chemicals it has determined cause cancer or reproductive harm and updates this list annually.Today, it includes more than 1,000 chemicals. With certain exceptions, of course, the warning requirements apply to manufacturers, distributors, suppliers and retailers of consumer products. Certain warning content and transmission methods prescribed in the regulations fall within the statute’s “safe harbor” and are determined to be clear and reasonable under the law by the lead agency. If the warning given is not within a safe harbor, then whether the warning is clear and reasonable would become a factual issue.

Since its enactment in 1986, Proposition 65’s citizen suit provision has imposed compliance burdens and legal risk on businesses. The provision permits private parties to bring Proposition 65 lawsuits on behalf of the California attorney general, provided they give 60 days’ notice to the business that is the target of the suit. Private enforcers who prevail in their Proposition 65 lawsuits may recover 25 percent of the civil penalties plus attorneys’ fees.

OEHHA’s Proposed Changes to Proposition 65

On Jan. 8, 2021, OEHHA announced its plan to amend existing law via proposed rulemaking that would fundamentally alter the use of short-form warnings to comply with Proposition 65.

(1) New Limits to When a Short-Form Warning May Be Used

Under the proposed amendment the short-form warning would be restricted for use on only “small” products. Specifically, a short-form warning would be permitted only when the total surface area available for consumer information on a product is 5 square inches or less, or the package shape or size cannot accommodate a full warning.

(2) New Content Required for Short-Form Warnings

The short-form warning would be required to include the name of a listed chemical for each exposure pathway.

For example, the new short-form warning text for a product containing a listed carcinogen would be:

Cancer Risk From [Name of one or more chemicals known to cause cancer] Exposure –

Likewise, the new short-form warning text for a product containing a listed reproductive toxicant would be:

Risk of Reproductive Harm From [Name of one or more chemicals known to cause reproductive toxicity] Exposure –

If a product contains both a listed carcinogen and a listed reproductive toxicant, the chemical name for each pathway must be listed. Only one chemical from each pathway is required.

Businesses that now use the standard short-form warning should be on notice that they may need to conduct chemical testing on products sold in California and identify specific listed chemicals to be in compliance if this amendment becomes effective.

(3) Short-Form Warnings Would No Longer Be Allowed for Internet or Catalog Sales

The proposed amendment prohibits use of short-form warnings for internet and catalog warnings. Currently, a business is allowed to use a short-form warning for internet and/or catalog warnings if a short-form warning is used on the product. The proposed amendment eliminates this allowance.

(4) Short-Form Warnings Allowed for Food Products

The proposed amendment clarifies that a short-form warning may be used for food products. However, if the short-form warning is used, it would have to include the relevant chemical name(s) and follow the new short-form warning content requirements detailed above. In addition, a warning on a food product would have to be “set-off from other surrounding information and enclosed in a box.”

Effective Date

These “2020 amendments” are proposed to become effective one year from the date they are approved by the California Office of Administrative Law (OAL). A warning for a consumer product that is manufactured prior to the effective date [one year after OAL approval] would be deemed clear and reasonable so long as it complies with the August 2016 revisions. Thus, the current amendments would allow manufacturers to sell through inventory manufactured before the effective date.

As part of its rulemaking process, OEHHA is currently accepting written comments concerning its proposed changes to Proposition 65. All written comments must be received by March 8, 2021, and will be posted on OEHHA’s website at the close of the comment period. Further details regarding the proposed amendments to Proposition 65 and directions on how to submit comments can be found on OEHHA’s website.

While awaiting final rulemaking action from OEHHA, businesses that sell consumer products in California should consider re-evaluating and adjusting their Proposition 65 compliance strategy as necessary, particularly businesses that currently use short-form warnings on their products. McGuireWoods will keep a close eye on the status of these proposed changes and provide updates as more information becomes available.