Who Is Potentially Affected?
Any manufacturer, producer, packager, importer, supplier, or distributor of products that may contain one or more chemicals from the Proposition 65 List is subject to this proposed labeling change.
Businesses in this category must either ensure that the required warning is part of the product label or must provide notice and warning materials to an authorized agent of the retailer and receive an acknowledgment that both the notice and the warning materials were received by the retailer.
For several decades, there was a one-size-fits-all Proposition 65 warning label. That changed in 2018 when OEHHA developed several options, broadly split between the long form and the short form. Where a business chooses to use one of the prescribed warning label formats, the business obtains a “safe harbor” against enforcement actions as OEHHA has deemed to comply with the “clear and reasonable” standard.
What Are the Key Changes to the Short-Form Warning?
Specifically for users of the short-form warning, OEHHA is proposing to increase the maximum label size for the short-form warnings from 5 square inches to 12 square inches and to allow the same short form on the product label to be used on the internet and in catalogs. OEHHA is proposing to limit the short-form warnings to small products only. The proposed provisions state that the short-form warning may be used only if the package shape or size cannot accommodate the full-length warning described in the regulations, with the entire warning printed in a type size no smaller than the largest type size used for other consumer information on the product, and in no case smaller than six-point type. OEHHA is proposing that the short form get a bit less short — but requiring the additional wording found in the long form, such as “exposes you to [name of chemical], a [carcinogen and/or reproductive toxicant] — www.P65Warnings.ca.gov.” Most critically, OEHHA is proposing to require the short-form warning users to add the names of listed chemicals that are present in the product.
The proposed amendments will also allow for “CA Warning” or “CALIFORNIA WARNING” to make clear that the warning is being given pursuant to California law (as opposed to only having the permitted word be “WARNING”).
In general, regulated businesses should also be mindful that Proposition 65 is enforced by the California attorney general’s office, and by any district attorney or city attorney, for cities with populations exceeding 750,000. Additionally and critically, any individual may file a public-interest lawsuit against a business allegedly in violation of Proposition 65. Concerned businesses should also be mindful that penalties for failing to provide the required notice can be up to $2,500 per violation per day, which could add up to significantly large sums. For these reasons, regulated businesses should be prepared to implement the requirements of the proposed regulations should they finalize.
The comment period for this proposal began on December 17, 2021, and concludes on January 14, 2022. If finalized, these provisions would likely come into effect during 2023.