California Still Seeking Proper Balance for Prop 65 Short Form Warnings
The California Office of Environmental Health Hazard Assessment (OEHHA), which manages the state's Proposition 65 program, is reviewing comments on its latest attempt to limit use of the popular "short form" warning option. The latest proposal, released on April 5, pulls back on several key changes from prior proposals, first issued in January 2021 with subsequent refinement in December 2021, that would have dramatically curtailed the ability to utilize the short form warning, including:
- Eliminating altogether the label size restriction for use of the short form warning. In December, OEHHA proposed to set the maximum label size for short form warnings at 12 square inches (which was an increase from the original January 2021 proposed limit of 5 square inches).
- Removal of a proposed requirement that the font type size must be the same as the largest type size providing consumer information . The existing provision requiring a minimum of 6-point type size when using short form warnings would stay in place.
- Extending the phase-in period for the new short form warnings from one to two years.
Note: It is always important to remember that Prop 65 only mandates that a "clear and reasonable" warning be provided to consumers prior to exposure to a chemical listed by the state as a carcinogen or reproductive toxin. The law and its implementing regulations do not require that any specific text or method of delivery be utilized. However, critically, the regulations do prescribe warning methods and text that are considered de facto compliant and not subject to enforcement challenge (i.e., "safe harbor warnings"). Failure to use the "safe harbor" warnings opens up the possibility of an enforcement action brought by highly litigious and continually active Prop 65 plaintiffs. Hence, the regulations serve as a practical baseline requirement for companies who, logically, seek to avoid entanglement in often spurious Prop 65 litigation.
The business community has been ardently opposed to the proposed changes in large part because companies only recently implemented the short form warnings after their initial adoption in 2016 amendments to the Prop 65 warning regulations, which came into effect in 2018. Now, having gone through the costly process of redoing product labels with the original short form warning, companies now may be faced with the need to once again change labeling at significant expense. Moreover, there is concern that requiring the identification of one chemical as part of the warning will not provide consumers with helpful information and may even be misleading for products that cause exposure to multiple listed chemicals.
Currently, short form warnings look like:
WARNING: Cancer – www.P65Warnings.ca.gov
WARNING: Reproductive Harm – www.P65Warnings.ca.gov
WARNING: Cancer and Reproductive Harm – www.P65Warnings.ca.govIf the current proposal is finalized, the new short form warnings would read as follows:
WARNING [OR CA WARNING OR CALIFORNIA WARNING]: Risk of Cancer [and/or Reproductive Harm] from [Name of chemical known to cause cancer and reproductive toxicity] Exposure – www.P65Warnings.ca.gov
WARNING [OR CA WARNING OR CALIFORNIA WARNING]: Risk of Cancer [and/or Reproductive Harm] from exposure to [Name of chemical known to cause cancer and reproductive toxicity] — www.P65Warnings.ca.gov
WARNING [OR CA WARNING OR CALIFORNIA WARNING]: Can expose you to [Name chemicals known to cause cancer and reproductive toxicity], a [carcinogen/reproductive toxin] — www.P65Warnings.ca.govFurther information on the proposed short form warning amendments is available at https://oehha.ca.gov/proposition-65/crnr/notice-second-15-day-modification-text-proposed-amendment-clear-and-reasonable.