OEHHA’s Proposed Amendments to Proposition 65 Short-Form Warnings

March 2024

The California Office of Environmental Health Hazard Assessment (OEHHA) is currently evaluating proposed changes to Proposition 65, a law requiring businesses to warn consumers about significant exposure to chemicals that cause cancer or reproductive harm. On October 27, 2023, OEHHA proposed significant revisions to Proposition 65’s “clear and reasonable” safe harbor warning regulations, which are outlined in Article 6 of Title 27 of the California Code of Regulations. Article 6 specifies safe harbor warning procedures, including warnings for consumer product exposures. After receiving requests from several stakeholders, OEHHA extended the public comment period for proposed rulemaking changes from December 20, 2023 to January 3, 2024. Now, OEHHA is taking the comments under advisement as it crafts its final rule.

Background

The Safe Drinking Water and Toxic Enforcement Act of 1986, also known as Proposition 65, is a California law requiring businesses to provide a “clear and reasonable” warning before intentionally exposing people to chemicals known to cause cancer or reproductive toxicity. The OEHHA is the lead agency responsible for implementing Proposition 65. OEHHA can create and modify regulations that help accomplish the Act’s goals.

In August 2016, the Office of Environmental Health Hazard Assessment (OEHHA) made significant changes to the “clear and reasonable” regulations for safe harbor warnings initially adopted more than 35 years ago. As part of the new rules, OEHHA introduced an optional “short-form” warning that businesses and manufacturers could place directly on a small product, its label, or its immediate container or wrapper. The current short-form warning for consumer products for each of the endpoints is as follows:

After adopting the safe harbor warning regulations in August 2016, OEHHA discovered that many businesses were using the short form warning for various consumer products, regardless of product or package size. In January 2021, OEHHA proposed revisions to the regulations to ensure that the short-form safe harbor warning conveyed more information to consumers. However, the agency could not finish making the rule within the time limit for regulation. As a result, the proposal lapsed in May 2022, and OEHHA stated its intention to restart the regulatory process later.

Proposed Amendments

The proposed amendments would, among other things, amend the provisions for short-form warning content by:

Requiring the name of a listed chemical for which the warning is being provided to be included in the warning—or the name of two chemicals, if the warning is being provided for both cancer and reproductive toxicity unless the same chemical is listed for both endpoints.
Modifying the wording of the warning to communicate its meaning to consumers better.
Providing multiple wording options for the warnings. These new provisions would include multiple options for short-form safe harbor warnings for a consumer product exposure to a chemical that is listed as a carcinogen, a reproductive toxicant, or both, as well as other listed chemicals in the product.
Providing two more signal word options, “CA WARNING” and “CALIFORNIA WARNING,” in addition to the existing signal word “WARNING.”
Providing an unlimited sell-through period for products manufactured and labeled before the effective date of the amendments to limit costs to businesses and a 2-year phase-in period for the new short-form safe harbor warning. This would allow the new language to be used immediately after the regulation is adopted and provide an additional two years after the regulation’s adoption for businesses to transition from the existing short-form warning language to the new content.

As an example, if OEHHA adopts the proposed amendments, a short-form warning for a consumer product exposure to the carcinogen formaldehyde would state:

Another option under the proposal is:

According to OEHHA, the new requirement in the proposed short-form warning to name at least one chemical per major endpoint will discourage unnecessary, prophylactic over-warnings that dilute the effectiveness of warnings for actual exposures to listed chemicals.

The proposed amendments aim to clarify the existing safe harbor warning requirements for products sold online and in catalogs. The amendments also explain that short-form warnings are acceptable for providing safe harbor warnings for food products. New tailored safe harbor warnings have also been introduced for passenger or off-highway motor vehicle parts and recreational marine vessel parts.

Proposition 65 allows individuals to sue manufacturers, distributors, or retailers for violating the law and keep one-quarter of any civil penalty payment in a settlement, with the remaining going to OEHHA. If you sell your products in California, it is important to review your Proposition 65 warning labels and compliance strategy.

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