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The (Possibly) Short Life of the Proposition 65 Short Form Warning

With significant changes to Proposition 65’s warning requirements on the horizon, many businesses are asking how short-lived the Prop 65 short-form warning will be.  Although we do not yet have an answer, we do know that, earlier this year, the California Office of Environmental Health Hazard Assessment (“OEHHA”) announced proposed amendments to the short-form warning, which has seen widespread use by businesses looking to comply with Prop 65.

Proposition 65 requires businesses to provide “clear and reasonable” warnings before knowingly and intentionally exposing California consumers to one of over 900 chemicals listed as known to the State to cause cancer and/or reproductive toxicity.  Although the law does not technically require a specific warning, the implementing regulations provide “safe harbor” warning language that is deemed to comply with Prop 65.  OEHHA promulgated significant revisions to its Prop 65 warning regulations in 2016, which became effective in 2018.  Among other things, those revisions allowed businesses to use a then new, short-form “safe harbor” warning on the product.

This short-form option has proven to be a popular method for businesses to both concisely transmit the Prop 65 message to California consumers and also mitigate litigation risks.  So popular, in fact, that OEHHA has developed the perception that the short-form warning is being overused, contributing to over-warning, and diminishing the impact and purpose of Prop 65.

To seemingly address that view, OEHHA has now introduced proposals to limit use of the short-form warning, less than three years after its original implementation.  If adopted, the main modifications would include the following:

  1. Only permitting short-form warnings on products with five square inches or less of label space, if the package shape and size cannot accommodate the full-length warning;
  2. Eliminating use of the short-form warnings on websites and in catalogs, even where the product itself is labeled with a short-form warning;
  3. Requiring the identification of at least one chemical in the short-form warning;
  4. Re-wording the warning to include the words “Risk of” and “Exposure”; and
  5. Clarifying how short-form warnings can be used for food products.

The proposed amendments would allow for a one-year phase-in period, as well as an unlimited sell-through period for products manufactured prior to the effective date.

Not surprisingly, many manufacturers and retailers are staunchly opposed, siting a myriad of headaches and business pressures these changes would cause.  At the 2021 Prop 65 Clearinghouse Annual Conference, industry representatives expressed frustration and surprise at the proposals, noting that the ink is “barely dry” on initial adoption of the short-form warning.  Companies using the short-form warning point to the expensive, confusing, and time consuming efforts required to accommodate such a sweeping shift.  Others wonder why the focus is on the short-form warning at all, and not the effect of overly aggressive enforcers.

These and other comments have been submitted to OEHHA, which the agency is currently reviewing.  Although timing remains uncertain, it was reported at the Prop 65 Clearinghouse that OEHHA is “several months” out from a decision, and it has advanced May of 2022 as a deadline for its final determination.

Although it is too soon to attempt to “read the tea leaves,” it is not necessarily too early for your company to begin analyzing the potential impact of the new regulations on your compliance operations.  Steps may include expansion of compliance resources, reevaluation of products across the board, identification of chemical composition, revising notifications to downstream retailers and distributors, and addressing the online warning issue.  Please reach out if you would like to discuss any aspect of the proposed amendments with us, and Grimaldi Law Offices will keep you informed as the situation continues to develop.

Grimaldi Law Offices has been advising clients for over 20 years on chemical and product law. For knowledgeable advice and in-depth analysis on your Prop 65 compliance obligations, contact Grimaldi Law Offices at (415) 463-5186 or email us at [email protected].

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Ms. Grimaldi maintains a diverse environmental law practice focusing on chemical and product regulation and litigation defense. Her practice areas include Proposition 65, California's Safer Consumer Products Regulations, California's Rigid Plastic Packaging Container Act and the federal Toxic Substances Control Act. Ms. Grimaldi graduated from the University of California Hastings College of the Law magna cum laude and holds a Bachelor of Science Degree in Bacteriology from University of California, Davis. Prior to attending law school, she worked as a research assistant in laboratories at the University of California, San Francisco Cancer Research Institute and at the University of California, San Francisco School of Medicine.