WARNING: Ability to Use Proposition 65 Short-Form Warnings May be Short Lived

Greenberg Glusker LLP

Greenberg Glusker LLP

The California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed significant changes to the Proposition 65 warning requirements that may impact businesses’ Proposition 65 warning compliance strategy. In particular, OEHHA is proposing changes to “short-form warnings,” on which the regulated community heavily relies.

Proposition 65, officially referred to as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses with 10 or more employees to provide a “clear and reasonable” warning before exposing individuals in California to any listed chemical that may cause cancer or reproductive harm. 

Regulations adopted in August 2016, and effective on August 30, 2018, provided certain revised “safe harbor” provisions, which set forth specific warning language and methods of transmission that businesses can use to ensure compliance with Proposition 65. For the first time since the inception of Proposition 65, businesses were required to list at least one chemical for which a warning was required and identify one or both “endpoints” implicated (cancer and/or reproductive harm). For on-product labels, however, the regulations allowed businesses to use a “short-form” warning that did not identify any chemicals. Short-form warnings were allowed irrespective of product size.

Since the warning regulations were revised, the regulated community has gravitated toward the short-form warning, given the reduced compliance burden. For example, California labs routinely charge around $2,000 per product to identify Proposition 65 chemicals and another $2,000 for a Proposition 65 exposure assessment. So companies used the short-form warning as a way to fully comply with Proposition 65 at a reduced cost.

OEHHA’s proposed changes restrict use of the short-form warning label to products on which the total surface area available for consumer information is 5 square inches or less, and the package shape or size cannot accommodate the full-length warning. In a great departure from current short-form warning requirements, the proposed changes also require listing at least one chemical for each exposure pathway (i.e., cancer or reproductive risk). For businesses that sell their products online or through catalogs, the proposed changes would wholly eliminate the ability to use short-form warnings via these media.

If OEHHA adopts the proposed changes, they will become effective one year from the date of California Office of Administrative Law approval. Penalties for failing to comply can be steep – up to $2,500 per day for each violation. Businesses that do not comply with Proposition 65’s warning requirements are often targeted for enforcement actions by consumer groups and are at risk for penalties and for plaintiffs’ attorney fees. 

Businesses that currently rely on the short-form warning should be aware of these proposed changes to provide themselves with sufficient time to change package warnings should OEHHA adopt the changes. Written comments on these proposed changes must be submitted by March 8, 2021. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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