Major new changes to the California Proposition 65 warning requirements went into effect on New Year’s Day. After multiple attempts, California’s Office of Health Hazard Assessment (OEHHA) adopted long-awaited changes to the “short-form” warning, rendering it significantly less short. In addition, the amendments specify that on-line purchases only require a warning be provided on the website prior to sale (and clarify that a separate on-product warning is not required for on-line purchases), and include new provisions for food products and motor vehicle and recreational marine vessel parts.
While the changes are effective as of January 1, 2025, businesses have three years (until January 1 ‚2028) to comply with the new short-form and other requirements. Products manufactured and labeled prior to January 1, 2028, using the “old” version of the short-form warnings will not have to be relabeled (i.e., there is an unlimited “sell-through” period).
Not So Short-Form
Prop 65 requires businesses to provide warnings to consumers prior to selling a product in California that could cause an exposure to a listed chemical. The law does not specify required warning text or methods, other than that the warning be “clear and reasonable” and provided to the consumer prior to exposure. However, OEHHA regulations specify warning language and methodology for various product categories which, if utilized, are deemed de facto compliant (a/k/a “safe- harbor” warnings). To avoid challenge, companies routinely utilize these “safe-harbor” warnings, including “short-form” versions that were originally introduced in the 2016 Prop 65 amendments. The brevity of this method, combined with this label’s ability to comply with Prop 65 without disclosure of a specific chemical, has resulted in its widespread popularity with manufacturers, distributors, and retailers.
Long Form:
WARNING: This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer [birth defects or other reproductive harm]. For more information go to www.P65Warnings.ca.gov.
OLD Short-Form:
WARNING: CANCER [REPRODUCTIVE HARM] – www.P65Warnings.ca.gov.
The ”short-form” warning originally was intended for use with products with limited label space, though the regulations do not include this limitation. OEHHA and activist groups have been critical of the short-form for failing to provide consumers information about the chemical for which the warning is being provided, as well as its widespread use on products with sufficient label space for the full text warning.
Now, the short-form warning will require identification of at least one chemical per endpoint (cancer and reproductive harm) and two options for the text, as follows:
For exposures to listed carcinogens:
WARNING: Cancer risk from exposure to [name of chemical]. See www.P65Warnings.ca.gov.
or
WARNING: Can expose you to [name of chemical], a carcinogen. See www.P65Warnings.ca.gov.
For exposures to listed reproductive toxicants:
WARNING: Risk of reproductive harm from exposure to [name of chemical]. See www.P65Warnings.ca.gov.
or
WARNING: Can expose you to [name of chemical], a reproductive toxicant. See www.P65Warnings.ca.gov.
For exposures to both listed carcinogens and reproductive toxicants:
WARNING: Risk of cancer from exposure to [name of chemical] and reproductive harm from exposure to [name of chemical]. See www.P65Warnings.ca.gov.
or
WARNING: Can expose you to [name of chemical], a carcinogen, and [name of chemical], a reproductive toxicant. See www.P65Warnings.ca.gov.
For exposures to a chemical that is listed as both a carcinogen and a reproductive toxicant:
WARNING: Risk of cancer and reproductive harm from exposure to [name of chemical]. See www.P65Warnings.ca.gov.
or
WARNING: Can expose you to [name of chemical], a carcinogen and reproductive toxicant. See www.P65Warnings.ca.gov.
The regulations also now explicitly allow for use of the signal phrase “CALIFORNIA WARNING” or “CA WARNING” in lieu of simply “WARNING.”
The short-form can be used regardless of the size of the product package, but must be provided in a minimum 6-point font and “conspicuous” (i.e., “conspicuousness as compared with other words, statements, designs or devices on the label, labeling, or sign, as to render the warning likely to be seen, read, and understood by an ordinary individual under customary conditions of purchase or use”). In sum, while OEHHA deleted language stating that font size of the warning must be no smaller than the type size used for other consumer information on the product, the warning must be obvious to the consumer.
Warnings for Internet Purchases
Significantly, the amendments revert to the original 2016 text and strike the current requirement that, for products sold online, warnings be provided on the website and on the product package. This requirement was a major practical hassle for companies that were hesitant to include Prop 65 warnings on products not sold in California, but obviously found it difficult to have separate product labeling for one state.
The new regulations specify three options for warnings tied to internet purchases:
(1) on the product display page;
(2) a clearly marked hyperlink on the product display page using the words “WARNING” or “CA WARNING” or “CALIFORNIA WARNING,” that links to the full warning; or
(3) an otherwise prominently displayed warning provided prior to completing the purchase (“the warning is not prominently displayed if the purchaser must search for it in the general content of the website”). This would allow for “pop up” warnings and similar approaches that appear to a California consumer prior to completing the transaction.
Website warnings may use the “short-form” if the short-form accompanies the product when sold in brick-and-brick and mortar retail stores.
Finally, the regulations provide a 60-day grace period for on-line retailers to update webpage warnings after receiving a notice of the change from the manufacturer or after a 60-day notice of violation is received from a plaintiff.
Other Amendments
Food Product Warnings: The amendments specify that the short-form warning is an option for food products. The only difference is that “short-form” food product warnings do not require the yellow triangle symbol and include a food-specific web address (www.P65Warnings.ca.gov/food).
Motor Vehicle/Marine Vessel Parts: As with other categories of products/exposures, OEHHA has now adopted warning language tailored to address exposures from: (1) “Passenger or Off-Highway Motor Vehicle Parts”; and (2) “Recreational Marine Vessel Parts.”
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