The California Office of Health Hazard Assessment (OEHHA) has issued a note December 13^e who proposes a surprising number of changes to the simple and abbreviated warning approach under Proposition 65. The proposal introduces another ‘safe harbor’ but effectively removes the short form approach – and was introduced as part of the changes to the Warnings Act in 2016. Public comments will only be accepted for a short time, until January. 14, 2022.

Proposition 65, officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986, prohibits any company from “knowingly and intentionally” exposing Californians to a chemical known to the State of California to cause cancer, birth defects or other reproductive harm without providing a warning.[1] OEHHA publishes and updates a Prop 65 list of over 900 restricted chemicals.[2] The OEHHA proposal does not change the options for consumer product warnings. Manufacturers can always either:

• Provide a warning on the product, its label (“a display of written, printed or graphic material on a product or its immediate container”), or its labeling (“any label or other written, printed or graphic material affixed to or accompanying a product or its container or packaging ”); Where
• Provide written notice to a retailer’s “authorized agent”, including specific information about potential exposure to a listed chemical, including all necessary warning materials and appropriate warning language for each product.

The need to use a yellow triangle symbol with the exclamation point will always be required. The specific modifications proposed to the short form option are as follows:

• Maximum label size: Increase for abbreviated warnings from 5 square inches to 12 square inches for packaging with limited label space available for consumer product information that does not easily heed the full warning.
• Consistent use: allows the use of the new short form of warning on websites and in catalogs.
• Deletion of the word “Product”: The text of the warning instructions in the regulations will simply refer to the existing term “label” in response to comments that the term “product label” was undefined and confusing.
• New signal word options: The additional signal word options “CA WARNING” or “CALIFORNIA WARNING” are provided to specify that the warning is given in accordance with California law. Companies would still have the option of using the signal word “Warning”.
• No more safe harbor words: OEHHA removes the simple formulation approach (for example, “WARNING Cancer – P65Warnings.ca.gov. ”) And provides two options for each type of warning required. The proposed format is as follows:
  • For exposures to listed carcinogens: The words “Risk of cancer from exposure to [name of chemical] – www.P65Warnings.ca.gov. “, Or” exposes you to [name of chemical], a carcinogen – www.P65Warnings.ca.gov.
  • For exposures to listed reproductive toxicants: The words “Risk of damage to reproduction resulting from exposure to [name of chemical] – www.P65Warnings.ca.gov. “, Or” exposes you to [name of chemical], a reproductive toxicant – www.P65Warnings.ca.gov.
  • For exposures to both listed carcinogens and reproductive toxins: The words “Risk of cancer [name of chemical] and adverse reproductive effects resulting from exposure to [name of chemical] Exhibition – ww9w.P65Warnings.ca.gov. “, Or” exposes you to [name of chemical], a carcinogen, and [name of chemical], a reproductive toxicant – P65Warnings.ca.gov. “
  • When a single chemical is listed as both carcinogenic and toxic to reproduction: The words “Cancer risk and damage [name of chemical] – www.P65Warnings.ca.gov. “, Or” exposes you to [name of chemical], a carcinogen and toxic for reproduction – P65Warnings.ca.gov. “

Some might see this proposal as a nice vacation package for businesses in the state of California. Nonetheless, the proposal raises deeper questions, such as whether the decision to remove the current format is premature, what will be the cost to businesses of implementing the proposed changes and, ultimately, whether proposed changes defeat the very purpose of having a shorthand warning option. The short form warning will no longer be small or short – the size of the warning will more than double and the wording will increase to approximately one-third of the number of words in the long form (i.e. the 32 words “WARNING: This product can expose you to chemicals, including [name of one or more chemicals], which is known to the State of California to cause cancer. For more information, visit www.P65Warnings.ca.gov. “). The proposed changes will certainly result in different warnings for the same products, which could undermine the integrity of the law’s “clear and reasonable” warning requirement. One aspect that’s decidedly short is the comment period, which doesn’t take into account the much-needed hiatus from the adversity of 2021 to spend time with friends and family. The timing is right for companies to consider requesting an extension to comment. As is always the case, the changes will take effect one year after the rule is finalized.

[1] Cal. Health & Saf. Code §§ 25249.5 – 25249.14.

[2] https://oehha.ca.gov/proposition-65/proposition-65-list.