On December 6, 2024, the Office of Environmental Health Hazard Assessment (OEHHA), the lead California regulatory agency tasked with implementing California's Proposition 65, issued a notice stating that the Office of Administrative Law approved changes to the Prop 65 "clear and reasonable warnings" regulations originally proposed by OEHHA in October 2023. These changes, including changes to the so-called "short-form" warning requirements, will have a significant impact on the regulated community.
Prop 65, officially referred to as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses with 10 or more employees to provide a "clear and reasonable" warning before exposing individuals in California to any listed chemical that may cause cancer, birth defects or reproductive harm, or both. This list includes almost 1,000 chemicals ranging from naturally occurring to human-made chemicals. This list continues to grow as new chemicals are periodically added because they are determined to cause cancer, birth defects or reproductive harm, or both.
Regulations that went into effect in 2018 provided certain "safe harbor" warning language, which allowed businesses to use a "short-form" warning on non-food products that did not require identification of a specific chemical associated with each "endpoint" harm (i.e., cancer and/or reproductive harm). For this reason, many businesses relied on the short-form warning in lieu of a "long-form" warning that required identification of a specific chemical.
Effective January 1, 2025, the new Prop 65 safe harbor warning requirements depart significantly from the prior requirements:
- Chemical Identification Required: All warnings, including
short-form warnings, must now include at least one Prop 65 chemical
for each endpoint harm (cancer and/or reproductive harm)
irrespective of packaging/product size to "make the
Proposition 65 warning more informative to consumers."
- Additional Warning Options Added: Following the symbol
consisting of a black exclamation point in a yellow equilateral
triangle, businesses now have the option of using
"WARNING," "CA
WARNING," or "CALIFORNIA
WARNING" as a prefix to the required warning
language.
- Food Warning: Tailored short-form warnings can now be used for
food products.
- Internet Warnings: Clarification of the internet warning
requirements and a retail seller's responsibility to post
internet warnings.
- Other Warning Requirements: There are also new tailored safe harbor warnings for passenger or off-highway motor vehicle parts and recreational marine vessel parts.
Although revised warnings aren't required until 2028, businesses wishing to comply with the new warning requirements may do so now. Otherwise, businesses have three years to comply with the new requirements and an unlimited sell-through period for products manufactured and labeled with the existing short-form warnings before expiration of the three-year transition period. Despite this lengthy compliance period, prudent businesses should plan now for implementation of the new warning requirements, which will require an assessment of the specific Prop 65 chemicals present in products.
We can expect an increase in enforcement actions targeting unwary businesses that fail to comply with the safe harbor warning requirements after the transition period. Noncompliance penalties can be steep — up to $2,500 per day for each violation (with a "violation" typically considered a California sale or "exposure") plus payment of the plaintiff's attorneys' fees and costs.
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