Short-form warnings for products that may expose consumers to chemicals on California’s Prop 65 list must now include at least one chemical name to qualify for Prop 65’s “safe harbor” protections—with one caveat. Businesses may continue to use the previous version of the short-form warning on consumer products through the end of 2027.
Businesses risk steep penalties for failure to comply with Prop 65. Stay ahead by understanding the changes and creating proactive strategies to ensure you meet the requirements on time.
What is Prop 65?
California’s Proposition 65 requires businesses to provide a “clear and reasonable” warning before they knowingly and intentionally cause an exposure to a chemical listed as known to the state to cause cancer or reproductive toxicity.
Since 2016, businesses have had the option to use specific “safe harbor” short-form warning language to comply with Prop 65’s warning requirements (e.g., WARNING: Cancer and Reproductive Harm – www.P65Warnings.ca.gov). The short-form warnings were developed by the Office of Environmental Health Hazard Assessment (“OEHHA”) in response to stakeholders’ concerns that the full-length warning language would not fit on small products,[1] but were not limited to only small products. These warnings, unlike the full-length safe harbor warnings, did not require businesses to identify the specific chemical involved in the potential exposure.
New Regulations for Short-Form Warnings
On October 27, 2023, OEHHA published a Notice of Proposed Rulemaking to amend the short-form warnings, citing the overuse of short-form warnings and the need for additional consumer clarity. Specifically, OEHHA expressed concern that many businesses were using the short-form warning “prophylactically[,] because it protects from potential litigation and does not require identification of a specific chemical exposure for which the warning is being given,” which OEHHA believed “does not serve Proposition 65’s purpose of providing relevant hazard information to consumers about Proposition 65-listed chemicals in products they may use.”[2] On November 26, 2024, the Office of Administrative Law approved the rulemaking.
Under the new regulations, a short-form warning must state at least one chemical name for which the warning is being provided. The regulations also make explicit that short-form warnings may be used to provide safe harbor warnings for food products, and provide new tailored safe harbor warnings for passenger or off-highway motor vehicle parts and recreational marine vessel parts.
The effective date for the amendments is January 1, 2025, but businesses selling consumer products may use the existing short-form warnings without identifying a chemical until December 31, 2027.
Below are some example short-form warnings for listed carcinogens under the new regulations:
- WARNING: [or CA WARNING: or CALIFORNIA WARNING:] Risk of cancer from exposure to [NAME OF CHEMICAL]. See www.P65Warnings.ca.gov
- WARNING: [or CA WARNING: or CALIFORNIA WARNING:] Can expose you to [NAME OF CHEMICAL], a carcinogen. See www.P65Warnings.ca.gov
Option for use on consumer products until December 31, 2027:
- WARNING: Cancer – www.P65Warnings.ca.gov
The final regulatory text, as amended, can be viewed here.
For Your To-Do List
Don’t wait until December of 2027 to assess your Prop 65 compliance. Make a plan now to:
- Review your warnings with legal counsel.
- Assess what chemicals are present in your products.
- Revamp product packaging.
- Revise your website and online product descriptions.
- Update your communications with your business partners.
FOOTNOTES
[1] Notice of Proposed Rulemaking and Announcement of Public Hearing: Amendments to Article 6, Clear and Reasonable Warnings Safe Harbor Methods and Content
[2] Id.