⚠️Warning! California Proposes Amendments Restricting Use of Proposition 65 Short-Form Warnings

Arent Fox
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Arent Fox

On January 8, 2021, the agency governing Proposition 65, the California Office of Environmental Health Hazard Assessment (OEHHA) proposed to amend the content and conditions for use associated with the widely-used short-form warning permitted under Proposition 65.
 

Proposition 65 requires businesses with ten or more employees to provide clear and reasonable warnings to California consumers about significant exposures to chemicals that cause cancer, birth defects, or other reproductive harm. Such exposures commonly occur through the use of consumer products.  Proposition 65 requires California to publish a list of chemicals known to cause cancer, birth defects, or other reproductive harm. This list, which must be updated at least once a year, has grown to include approximately 900 chemicals.

In August of 2016, OEHHA adopted major changes to the “clear and reasonable” warning requirements under Proposition 65. These amendments which went into effect two years later, in August 2018, allowed businesses the flexibility to use a short-form warning under specified circumstances, or a long-form warning that required the identification of one or more carcinogens or reproductive toxicants present in the subject product. The short-form warning, currently available, does not require the identification of a specific chemical or chemicals. Many businesses have opted to use the short-form warning in part because of its simplistic nature and the fact that it takes up less space on the product labeling or packaging.

Reasons for The Proposed Amendments to the Short-Form Warning

In issuing the proposed amendments to the short-form warning, OEHHA expressed concern that the short-form warning has been overused by companies and is being placed on product labeling even when the company has no knowledge that the product contains any chemicals on the list. When it introduced the short-form warnings in August 2016, OEHHA intended the short-form warning to be used on smaller products or containers with insufficient space for the long-form warning which identifies the specific Proposition 65 chemical(s) contained in the product.

The Details

The proposed amendment published on January 8, 2021, would limit the use of short-form warning only when 1) the total surface area of the product label available for consumer information is 5 square inches or less, 2) the package shape or size cannot accommodate the full-length warning described in Section 25603(a), and 3) The entire warning is printed in a type size no smaller than the largest type size used for other consumer information on the product, and in no case shall the warning appear in a type size smaller than 6-point type. The requirements above apply to both consumer product exposure and food exposure warnings. Internet purchases or catalog purchases would not be eligible to use short-form warnings under the proposed amendments.

The contents of the short-form warning under the proposed amendment must contain 1) the symbol ⚠️, 2) the word “WARNING” in all capital letters and bold print, 3) a warning statement indicating carcinogens and/or reproductive toxicants exposures, and 4) at least one carcinogen and/or reproductive toxicant. Examples of the proposed short-form warning changes are set forth below:

  • For exposures to listed carcinogens: ⚠️WARNING: Cancer Risk From [Name of one or more chemicals known to cause cancer] Exposure – www.P65Warnings.ca.gov
  • For exposures to listed reproductive toxicants: ⚠️WARNING: Risk of Reproductive Harm From [Name of one or more chemicals known to cause reproductive toxicity] Exposure – www.P65Warnings.ca.gov
  • For exposures to a chemical that is listed as a carcinogen and a reproductive toxicant: ⚠️WARNING: Risk of Cancer and Reproductive Harm From [Name of one or more chemicals known to cause cancer and reproductive toxicity] Exposure – www.P65Warnings.ca.gov

This proposed change differs significantly from the current short-form warning which does not require the identification of any specific chemical(s) and does not place a surface area limitation on the product packaging for use of the short-form warning. Further, the proposed amendments prohibit the use of the short-form warnings for internet purchases or in catalogs. Currently, the short-form warning is permitted in both spaces.

Any written comments to the proposed amendments must be received by OEHHA no later than March 8, 2021. A public hearing on the proposed amendments will be scheduled only upon request. The proposed amendments to the short-form warning requirements provide a one year phase-in period, allowing businesses time to come into compliance should the warning amendments be adopted.

Takeaways

  • The practical implications of the proposed amendments to the Proposition 65 short-form warnings, should they be adopted, is that companies selling consumer products into California will have to determine, from testing or otherwise, whether any of the products they are selling into California contain one or more chemicals on the Proposition 65 list. This change could increase the cost the overall burden of doing business in the state.
  • If companies are currently using short-form warnings on their product labeling or packaging and the proposed amendments are adopted, in some cases, companies will be required to switch to long-form warnings, which could mean increased labeling and printing costs.
  • Even if companies can satisfy the more restrictive short-form warning requirements for product labeling or packaging, they will still have to use the long-form warning for product sales over the Internet and in catalogs.
  • Being proactive to ensure compliance with any consumer protection law, such as Proposition 65 is key to reducing risk and potential liability. Companies are encouraged to understand the chemical composition of the products they sell into California to determine whether they are at risk, and if so, to find ways to minimize that risk. A Proposition 65 compliance plan is an effective way to achieve these goals.

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

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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