California Dials Back Proposed Amendments Restricting Use of Proposition 65 Short-Form Warnings 

What To Know:

• The revised proposed amendments dialed back previous restrictions OEHHA proposed in January and December 2021 by removing the label and size limitations on the use of short-form warnings and extending the operative date of the amendments from one to two years after the effective date. However, the revised proposed amendments continue to require the identification of at least one chemical on the short-form warning – a distinct departure from the current short-form warning.

History of Short-Form Warnings 

Proposition 65 requires businesses to provide clear and reasonable warnings to California consumers about significant exposures to chemicals that cause cancer, birth defects, or other reproductive harm. Such exposures commonly occur through the use of consumer products, such as cosmetics and personal care products, apparel and footwear, food products, and nutritional supplements, just to name a few. Proposition 65 requires California to publish a list of chemicals known to cause cancer, birth defects, or other reproductive harm.

In August of 2016, OEHHA adopted major changes to the warning requirements under Proposition 65. These amendments, which went into effect in August 2018, allowed businesses the flexibility to use a short-form warning under specified circumstances or a long-form warning requiring the identification of one or more Proposition 65 chemicals that are present in the product. During the development of the 2016 regulations, several companies raised a concern that a long-form safe-harbor warning would not fit on small products or containers. In response to those concerns, OEHHA included the option to provide a “short-form” warning on a product label.

Since August 2020, many businesses have decided to use the short-form warnings in part because of their simplistic nature (not requiring the identification of any specific chemical) and because it takes up less space on the product labeling and packaging.

January 8, 2021: Original Amendments to Short-Form Warnings

On January 8, 2021, OEHHA proposed original amendments to the short-form warnings expressing concern that the short-form warning had been overused by companies. As a result, the original proposed amendments represented deep restrictions on the use of the short-form warnings, such as:

1. requiring the identification of at least one listed chemical present in the product;
2. limiting the use of short-form warnings only when the total surface area of the product label available for consumer information is 5 square inches or less;
3. limiting the use of short-form warnings only when the package shape or size cannot accommodate the full-length warning;
4. requiring that the entire warning be printed in a type size no smaller than the largest type size used for other consumer information on the product;
5. requiring type size to be no smaller than 6-point type; and
6. prohibiting the use of short-form warnings for Internet and catalog purchases.

For more information on the original amendments, please see our previous alert here.

December 17, 2021: First Proposed Amendments to the Short-Form Warning

Following consideration of further comments and opposition by stakeholders to the original proposed amendments, OEHHA issued modifications to its original proposed amendments to the short-form warnings on December 17, 2021. The first proposed modifications reflect a walk-back on some of the restrictions OEHHA had previously proposed in January 2021, such as:

1. expanding the minimum label size from 5 square inches to 12 square inches; and
2. reinstating the option to use the short-form warning for Internet and catalog purchases

In addition, OEHHA’s first modification to its proposed amendments to the short-form warning included the option for businesses to include “CA WARNING” or “CALIFORNIA WARNING” on the warning to make clear that warnings are given pursuant to California law.

Despite the above changes OEHHA implemented into its proposals to address concerns raised by consumer product companies, the first modification to the proposed amendments still required the identification of at least one listed chemical in the warning – a significant departure from the current short-form warning utilized by the majority of businesses.

April 5, 2022: Second Amendments to the Short-Form Warning 

After considering additional comments by companies and other stakeholders, OEHHA issued the second amendment to the short-form warnings on April 5, 2022.

The second proposed amendments reflect a further dial back on OEHHA’s original proposed amendments. 

Those proposed amendments would:

1. remove the label size and package shape limitations on the use of short-form warnings,
2. remove the requirement that the font type size be the same as the largest type size, and
3. expand the implementation period of the short-form warning amendments from one year to two years after the effective date of the amendments.

While these proposed changes are beneficial to companies and reduce the burden of compliance, the second amendments still differ significantly from the current short-form warning, which does not require the identification of any specific chemical. This will likely be the most challenging aspect for companies in terms of compliance should the current proposal be implemented.

Proposed Safe Harbor Warnings

If implemented, the proposed amended short-form warnings will require the following language:

• For exposures to listed carcinogens: Two options:
   
  • ⚠️WARNING or CA WARNING or CALIFORNIA WARNING: Cancer risk from exposure to [name of chemical] – www.P65Warnings.ca.gov, or
     
  • ⚠️WARNING or CA WARNING or CALIFORNIA WARNING: Can expose you to [name of chemical], a carcinogen - www.P65Warnings.ca.gov
     
• For exposures to listed reproductive toxins: Two options:
   
  • ⚠️WARNING or CA WARNING or CALIFORNIA WARNING: Risk of reproductive harm from exposure to [name of chemical] – www.P65Warnings.ca.gov, or
     
  • ⚠️WARNING or CA WARNING or CALIFORNIA WARNING: Can expose you to [name of chemical], a reproductive toxicant – www.P65Warnings.ca.gov
     
• For exposures to both carcinogens and reproductive toxins: Two options:
   
  • ⚠️WARNING or CA WARNING or CALIFORNIA WARNING: Cancer risk from [name of chemical] and of reproductive harm from exposure to [name of chemical] – www.P65Warnings.ca.gov, or
     
  • ⚠️WARNING or CA WARNING or CALIFORNIA WARNING: Can expose you to [name of chemical], a carcinogen and [name of chemical], a reproductive toxicant - www.P65Warnings.ca.gov
     

Comments Due by April 20, 2022

Any written comments to the proposed amendments must be received by OEHHA no later than April 20, 2022. Electronic comments can be submitted through OEHHA’s website at https://oehha.ca.gov/comments.

Takeaways 

• If the latest proposed amendments to the short-form warnings are adopted, companies selling consumer products into California will have to determine, from testing or otherwise, whether any of the products they are selling into California contain one or more listed chemicals so that they can satisfy the proposed requirement that the warning identifies at least one listed chemical. This change will require additional costs and burden on companies doing business in the state.
• OEHHA has demonstrated over time that it meaningfully considers comments raised by companies and other stakeholders in response to its proposed amendments. Any businesses with concerns about the latest proposed amendments to the short-form warnings should submit comments to OEHHA by the April 20, 2022 deadline.
• Being proactive to ensure compliance with Proposition 65 is key to reducing risk and potential liability. Companies are encouraged to understand the chemical composition of the products they sell into California to determine whether they are at risk and to find ways to minimize that risk. A Proposition 65 compliance plan is an effective way to achieve these goals.

We will continue to monitor all developments with the proposed amendments to the short-form warnings under Proposition 65 and publish updates as developments become available.