Responding to a torrent of criticism, on December 13, California’s Office of Environmental Health Hazard Assessment (OEHHA) issued a revised proposal about coming changes to restrict companies’ use of the popular “short-form” Proposition 65 warning.

OEHHA is pulling back on some of the changes it proposed early this year, but it is maintaining changes to lengthen the warning and restrict its use to smaller labels, no larger than 12 square inches (increased from 5 square inches in the original proposal).

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 1,000 chemicals listed as “known” to cause cancer and/or reproductive harm. OEHHA’s implementing regulations provide “safe harbor” warning options that, if used, are deemed compliant with Prop. 65. A safe-harbor warning is thus practically, if not technically, required when Prop. 65 warnings are needed.

Amended safe harbor regulations approved in August 2016 went into effect in 2018. Those changes introduced a truncated warning, below, in addition to longer “standard” warnings:

WARNING: Cancer [and/or Reproductive Harm] – www.P65Warnings.ca.gov”

The short-form warning is popular among companies selling products into California due to its lower profile and broad scope: it covered all exposures across a wide swathe of consumer products and does not require specification of a listed chemical.

Changes proposed by OEHHA

OEHHA received 160 written and 21 oral comments on the amendments it proposed in January. Its recently proposed amendments pull back on two of the biggest changes. Among other things, the amendments would:

• Allow short-form warnings on products with 12 square inches or less of label space and where a standard warning would not fit (revised from 5 square inches)
• Permit use of short-form warnings for Internet and catalog warnings if the product itself uses a short-form warning
• Allow different signal word options (“CA WARNING” or “CALIFORNIA WARNING”) to make clear that the warning is given under California law (responding to the common complaint that consumers in other states, unfamiliar with Prop 65, may be unduly alarmed and confused by the warnings).

In its revised proposal, OEHHA kept several changes from the January version, which would:

• 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 “Cancer risk from [chemicals] and of reproductive harm from exposure to [chemicals] – www.P65Warnings.ca.gov” or “Exposes you to [chemical], a carcinogen and reproductive toxicant – www.P65Warnings.ca.gov.”
• 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:

CA WARNING: Cancer risk and reproductive harm from exposure to lead – 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 new safe harbor standard. The proposed amendments also provide an unlimited sell-through period for products already labeled under existing regulations.

Practical considerations and implications

Public comment helped make some progress in softening the impact of OEHHA’s January proposals, including reinstatement of the short-form option online and in catalogs. But the requirement to identify specific chemicals and the size restrictions remain in the proposed amendments, reducing the availability of the short-form warning overall.

If adopted as written, OEHHA’s revised amendments would not impact companies that already provide the old short-form pursuant to a court-ordered consent judgment, but companies providing short-form warnings outside of such judgments will need to reevaluate those warnings; they may also need to determine whether specific chemicals need to be newly identified. Selecting such specific chemicals to identify can be a difficult process that should be undertaken carefully, particularly for multi-chemical products.

Overall, OEHHA’s proposal is likely to be met again with significant opposition and frustration in the business community. By requiring chemical identification and additional language, OEHHA has arguably created just another long-form warning, and the exclusion of products with labels larger than 12 sq. inches effectively imposes long-form warnings on thousands of products that had been permitted to use short-form warnings. OEHHA nevertheless appears intent on limiting the short-form in an effort to deter what it considers to be an epidemic of “over-warning.” It is pursuing this path despite what many would argue is the true cause for over-warnings – Proposition 65’s low threshold for enforcement, incentives for bounty hunters, and “guilty until proven innocent” litigation burdens.

Comment deadline extended

OEHHA will accept comments on the proposed revisions to the short-form warning regulations through January 14, 2022.

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.