Third Time’s A Charm: California Re-Introduces Proposed Changes to Proposition 65’s Warnings and Safe Harbor Requirements

The proposed amendments would:

• Adopt new safe harbor warning content for short-form warnings;
• Clarify existing safe harbor warning requirements for products sold on the internet and in catalogs;
• Add signal word options for food warnings;
• Clarify that short-form warnings may be used to provide safe harbor warnings for food products; and
• Provide new tailored safe harbor warnings for passenger or off-highway motor vehicle parts and recreational marine vessel parts.

If implemented, the proposal would require the Proposition 65 short form warning to identify at least one Proposition 65-listed chemical present in the product. The agency stated the proposal intends to make the short form warning more informative to consumers. In reality, the proposal shifts costs to businesses.

In general, Proposition 65 requires businesses to provide warnings to Californians about significant exposures to chemicals it has determined to cause cancer, birth defects, or other reproductive harm when exposure to the chemicals exceeds an established safe harbor level in a consumer product.

In its current form, Proposition 65 allows businesses to elect either long form or short form warning for their products. The short form warning has been a favored choice among businesses because unlike its long form counterpart, the short form warning provides protection from litigation without mandating disclosure of a specific chemical. Because no disclosure of a chemical is required, the current short form warning provides businesses reliable protection against consumer litigation without having to engage in expensive testing of their products prior to their release into the market. The short form warning also provides flexibility to companies because it takes up very little space on the labeling or packaging of the product.

The Proposed Changes to the Proposition 65 Short Form Warning

Notably, OEHHA’s proposed amendments to the short form warning require businesses to identify the specific chemical exposure for which the warning is given. This change, if implemented, would strip businesses of the benefit of the legacy short form option and would require businesses to test their products for prohibited chemicals regardless of which type of warning they elect to display.

The agency’s Policy Statement Overview states the change is aimed at curbing over-use of the short form warning. According to OEHHA, many businesses are using the short form warning prophylactically to blanketly curb potential litigation. By that logic, if a business must identify a chemical exposure, the business will be less likely to use the warning as a litigation avoidance strategy on all products and more likely to warn only when the statute requires it.

OEHHA’s proposed amendments to the short form warning further saddle businesses in an already extraordinarily consumer friendly statutory scheme. Anyone can initiate a Prop. 65 claim, and once a restricted chemical is detected, the burden shifts to the business to prove that the level of exposure does not warrant a warning. Receipt of a notice of violation for failure to warn can (and often does) result in expensive litigation and consumer friendly settlements, even when no warning is required. The proposed changes to the short form warning fail to acknowledge the lack of bargaining power businesses (particularly small businesses) have once a claim is initiated, and why businesses feel the need to preemptively over-warn in the first place.

In addition to the requirement that businesses identify at least one chemical in the short form warning, the proposed amendments would only allow use of the short form warning on products with five square inches or less of label space, eliminate use of short form warnings for online and catalog warnings, and clarify how short form warnings can be used for food products.

The proposed changes would continue to require the triangle and exclamation point but allow for businesses to preface the warning with the use of “CA” or “CALIFORNIA” before “WARNING.” Businesses would have two years to transition to the new short form warning requirements.

Below is a table comparing the current short form warning with the proposed changes.

Takeaways

• If OEHHA’s proposed amendments to the short-form warnings are adopted, they will require companies selling consumer products in California to determine whether any of the products contain one or more Proposition 65-listed chemicals so that they can satisfy the proposed requirement that the short-form warning identifies at least one listed chemical. This will inevitably increase cost and burdens of companies selling consumer products in the state.

• Identification of chemical composition in the specific product will require testing and/or investigation within the applicable supply chain. Product distributors may opt to require Proposition 65 certification documents from downstream suppliers as one compliance measure.

What’s Next?

OEHHA is accepting public comments in writing on the rulemaking through December 20, 2023. Electronic comments can be submitted through OEHHA’s website at https://oehha.ca.gov/comments. OEHHA will also host a public hearing on December 13, 2023, at 10:00 am PST, at the CalEPA Headquarters in Sacramento. The hearing will be hybrid, conducted both remotely and in person. More information regarding how to participate in the hearing remotely will be posted on OEHHA’s website prior to the hearing.

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