Under California’s Proposition 65, businesses are required to provide “clear and reasonable” warnings before knowingly and intentionally exposing consumers to a listed chemical. Listed chemicals are classified by their ability to cause cancer, reproductive harm, or both. Businesses may choose to provide warnings in either long or short form.
California’s Office of Environmental Health and Hazard Assessment (OEHHA) issued a notice of proposed rulemaking on October 27, 2023 that seeks to “make the Proposition 65 short form warning more informative to consumers” by requiring specific chemicals to be listed. An overhaul of the short form warning has been a priority of OEHHA’s for quite some time. In 2022, OEHHA sought to amend requirements, but was unable to complete the regulatory review process.
Currently, short form warning labels do not require the identification of a specific chemical for which the warning is being given. Because of this, business often use a single general warning for a myriad of products. OEHHA believes that this has led to the overuse of the short form warnings, as this approach allows businesses to protect themselves from potential liability. The addition of a specific chemical aims to “provide sufficient information for consumers to make informed choices about their exposures to listed chemicals in consumer products.” OEHHA also clarified that short form warnings may be used for food products, where specific warning labels are not currently required (like for alcoholic beverages).
If adopted, the rule will greatly increase businesses’ compliance burden. All current short form warning labels will need to be evaluated in light of the new requirements. Products may need to be tested to create more specific short form warning labels. A one-size-fits-all approach to Proposition 65 will no longer suffice.
The public comment period for the proposed rule is scheduled to close Wednesday, December 20, 2023. Additionally, a public hearing will take place December 13, 2023. The new warning requirements will apply to all new products within two years of the adoption the proposed rule.