California’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed changes to the short form warnings currently permitted by Proposition 65. These changes have the potential to greatly raise the cost of doing business in California.

Californians are very familiar with “Warning—Proposition 65” labels—they are on nearly every product on sale. Presently, businesses are not required to specify any chemicals in their short form warnings. Now, as result of the ubiquity of Prop 65 warnings, OEHHA is seeking to discourage their overuse. OEHHA’s proposed changes would require those businesses that use short form warnings to list a specific chemical in their products that carries the risk of cancer or reproductive harm.

Many businesses use short form warnings as a prophylactic to avoid Prop 65 litigation and violations. With vast supply chains and factory changes, many businesses do not know if listed chemicals get on or in any of their products. To avoid lawsuits if a chemical is found, businesses simply add a generic short form warning. However, under the proposed rules, businesses would either need to test their products for chemicals, or go without warning labels, potentially risking future lawsuits if listed chemicals are found.

Unfortunately, OEHHA seems to downplay the potential costs to businesses in their proposal, only considering the costs of relabeling products and not the potential risk for a wave of litigation. Testing for chemicals can be expensive, and further testing will likely be required as OEHHA adds more chemicals to the list and as businesses change manufacturing processes and suppliers.

A violation of Prop 65 can result in penalties up to $2,500 per day per violation. Most businesses typically settle when a Prop 65 suit is brought against them.

OEHHA is holding a public hearing on December 13, 2023, while interested parties have until December 20, to submit comments on the proposed changes.