California’s Proposition 65 Short-Form Warning Labels
In the final days of 2024, California’s Office of Environmental Health Hazard Assessment (OEHHA) promulgated amendments to Proposition 65’s safe harbor warning regulations. OEHHA had originally proposed new short-form warning requirements in 2021, which stalled. OEHHA then restarted the rulemaking process in 2023, resulting in these final 2024 amendments.
The new short-form warnings are no longer so short. The short-form warnings must now include at least one chemical name that corresponds to each risk endpoint (cancer and/or reproductive risk); the previous short form warning safe harbors had no such requirement. A business need identify only one chemical per reproductive or carcinogen risk. In other words, if there are multiple chemicals for each risk category endpoint, Proposition 65 requires a business to display only one per endpoint. In addition, businesses that prefer to use the safe harbor warning will have multiple options for satisfying the “WARNING” language requirement of Proposition 65. The new language can be used as of January 1, 2025. Businesses can continue to use short-form warnings without naming specific chemicals throughout a three-year transition period until January 1, 2028.
Proposition 65 requires businesses to provide “clear and reasonable” warnings to people in California prior to causing an exposure to a chemical known to the state to cause cancer, birth defects, or other reproductive harm. The state publishes a list of those chemicals, which has grown to over 1,000 chemicals. The chemicals on the publicly available list include those found in pesticides, household products, food, drugs, and dyes.
OEHHA regulations provide safe harbor warning content and methods of transmission for various product categories and exposures. Compliance with the safe harbor warning regime is deemed to be compliance with Proposition 65. While businesses are not legally required to follow the safe harbor warning regulations and can develop their own “clear and reasonable” warnings, many businesses choose to use these warnings in order to benefit from safe harbor protections. Safe harbor warnings may follow a long or short format.
Proposition 65 applies to all businesses with 10 or more employees doing business in California. Businesses that chose to provide a warning may apply a warning to the product label or labeling or may provide notice and warning materials to an authorized agent of a downstream entity with an acknowledgment of receipt.
What Are the Key Changes to the Short-Form Warning?
Source: Sidley Austin LLP