EHS Administration, Regulatory Developments

Zooming In on Final Prop 65 Amendments

The California Office of Environmental Health Hazard Assessment (OEHHA) published a second notice of modification to its proposed changes to Proposition 65 (Prop 65) safe harbor short-form regulations.

About Prop 65

Prop 65 requires warnings labels to be placed on products sold in California that expose consumers to chemicals known to cause cancer or reproductive or development toxicity.

The state regularly updates a list of chemicals requiring warning labels. It also contains a “safe harbor level” for these chemicals, meaning a product containing lower levels than the published safe harbor level is not required to provide the warning label.

Exposure to these chemicals can occur in a variety of ways, including the consumption of food and beverages and product, environmental, and occupational exposure. Because the range of potential exposures is so varied, virtually any company selling products in California must comply with Prop 65 regulations.

Penalties are steep—up to $2,500 per day per violation.

The OEHHA added the option for short-form warnings in 2016, which industry found attractive because it:

  • Did not require specific identification of 1 of 900 listed chemicals
  • Provided some protection for companies from potential litigation without having to name a specific chemical exposure

Proposed changes

The OEHHA initially published proposed amendments to the regulation on January 8, 2021. In response, the office received more than 200 written comments, many of which expressed concerns regarding inconsistent regulations, consumer confusion, over-labeling, and financial impacts to consumers and companies.

In response, the OEHHA modified its proposed amendments to eliminate the requirement that short-form warnings only be allowed on small labels with surface areas of 5 or 12 square inches. The revised proposal extends the compliance date from 1 year to 2 years from the effective date of the final regulation.

However, the revised amendment still retains the requirement that future short-form labels contain the name of 1 or more Prop 65 chemicals.

Key industry takeaways

As summarized by law firm Hunton Andrews Kurth LLP in a Lexology article, the key modifications in the revised proposed short-form warning regulations include:

  • “Listing of Chemicals. The short-form warning would require identifying the name of one or more chemicals known to cause cancer and/or reproductive toxicity.”
  • “Flexibility in Font Type Size. The short form warning font type size would no longer be required to be the same as the largest type size providing consumer information. Note, however, that the existing provision requiring a minimum of 6‑point type size when using short-form warnings remains unchanged.”
  • “California Specific Signal Words. The short-form warning would qualify that it is a California specific warning, by adding ‘CA’ or ‘CALIFORNIA’ before the existing ‘WARNING:’ language. This addition should clarify for consumers that the warning label is included pursuant to California law.”

“OEHHA apparently has abandoned an amendment that would have eliminated the option to use the short-form warning content on websites or in a catalog,” states the Hunton Andrews Kurth article. “Thus, if a business uses the short-form warning on a product, it may continue to also use the same short-form warning on its website or in its catalogs.”