03 March 2021, by George Gigounas, Greg Sperla and Sean Newland
Important new changes to Proposition 65 warning requirements are on the horizon. A very popular warning option faces significant proposed restrictions, and businesses must prepare.
Less than three years ago, major changes to California’s Proposition 65 warning regulations went into effect, adding specificity (and length) to Prop 65 “safe harbor” warning language, but also giving a new “short-form” warning option.
This short-form warning (“WARNING: Cancer [and/or] Reproductive Harm – www.P65Warnings.ca.gov”) proved attractive to many businesses. That may change now, as California’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed new restrictions on the availability of the short-form warning.
If OEHHA’s January 2021 proposals are adopted, businesses selling products in California that utilize short-form Proposition 65 warnings may have to be re-label yet again or risk enforcement actions seeking to capitalize on the changes.
Background on short-form warning
Proposition 65 requires businesses to provide “clear and reasonable” warnings before knowingly and intentionally exposing to California consumers to one of over 900 chemicals listed as known to the State to cause cancer or reproductive toxicity. While the law does not require a specific warning, the implementing regulations provide “safe harbor” warnings that, if used, are deemed compliant with Prop 65 warning regulations. Of those businesses that provide a warning, most opt to provide safe-harbor warnings to reduce the risk of litigation.
Amended safe harbor regulations approved in August 2016 went into effect in 2018. Those changes introduced a “short-form” warning businesses could use instead of the standard, longer warning language. The short form proved popular, given its lower profile and broad scope: it covered all exposures across a wide swathe of consumer products and allowed users to avoid the need to specify a listed chemical.
Changes proposed by OEHHA
The popularity of the short form, however, has not gone unnoticed by OEHHA, which has long maintained the unofficial position that the short form was intended to be used sparingly. With its recently proposed amendments, OEHHA has now formally adopted that view, one shared by the ever-growing community of Proposition 65 enforcers, and has proposed to vastly limit the availability of the short form.
Under OEHHA’s proposed amendments, the short-form warning regulations would:
- Only allow short-form warnings on products with five square inches or less of label space and where a standard warning would not fit
- Eliminate use of short-form warnings for Internet and catalog warnings, even if the product itself uses a short-form warning
- Specially require short-form warnings for food to be “set off from other surrounding information and enclosed in a box”
- Re-word the warning to read “Risk of Cancer From [chemicals] And Reproductive Harm From [chemical] Exposure”
- Require the identification of specific chemicals in the short-form warning.
An example of the proposed short-form warning for both endpoints (cancer and reproductive harm) is:
WARNING: Cancer Risk and Reproductive Harm From Lead Exposure – www.P65Warnings.ca.gov.
OEHHA’s proposed amendments provide for a one-year phase-in period to allow businesses using the current short-form warning language to revise their labels to comply with the proposed standards. The proposed amendments also provide an unlimited sell-through period for products already labeled under existing regulations to reduce the likelihood that businesses will have to recall their products to comply.
Practical considerations and implications
OEHHA’s proposals, if adopted, are likely to impose significant new costs on many businesses currently employing the short-form warning option, or those that had planned to, barely two years after the prior changes went into effect.
While those companies that provide a short-form pursuant to a court-ordered consent judgment will be unaffected, the proposal may require the reevaluation of thousands of products currently displaying the short-form warnings in order to determine the specific chemicals that will need to be identified in the new warning. Businesses that sell online and use short-form warnings will be forced to assess whether and how to continue online sales, and will need to expend resources to implement those decisions.
In lieu of incurring the costs of re-labelling to conform to the proposed requirements, including the identification of specific chemicals, many companies may opt instead to forgo short-form warnings altogether, potentially leading to even more litigation.
The short-form warning also provided a workable resolution and alternative to continued litigation for arguable non-exposures, product reformulation, or discontinuation. The more strident message conveyed by the new warnings, however, could additionally deter companies from settling enforcement actions.
Overall, OEHHA’s proposals will be met with significant opposition and frustration in the business community. Short-form warnings, according to OEHHA, were meant to provide a more accessible alternative to longer warnings, while still alerting consumers to exposures. Requiring chemical listings and additional language substantially revises that intent and creates what is, arguably, just another long-form warning. Many would also argue that targeting industry for the purported overuse of short-form warnings as a prophylactic measure, while ignoring the proliferation of private enforcement actions that has led many of those businesses to adopt short-form warning protocols, speaks to only one side of the issue.
Comment deadline extended
Learn more about the comment process and the implications of this development for your business by contacting any of the authors or your DLA Piper relationship attorney.Back to news landing page