California’s Office of Environmental Health Hazard Assessment (“OEHHA”) held a meeting on December 13, 2023 to hear public comments on proposed amendments to its safe harbor regulations for clear and reasonable Proposition 65 (“Prop 65”) warnings. These proposed amendments would require short-form Prop 65 warnings to specify at least one Prop 65-listed chemical for each endpoint about which the company warns. Virtually all commenters in attendance strongly opposed OEHHA’s proposal, which is expected to impose significant costs on businesses for what commenters argued was little to no consumer benefit. Written comments on OEHHA’s proposal may be submitted through January 3, 2024.
Under current regulations, companies can provide Prop 65 warnings for consumer product exposures using an optional abbreviated format that includes a warning symbol, the word “WARNING,” a reference to OEHHA’s Prop 65 website, and the words “Cancer” or “Reproductive Harm,” or both. OEHHA created this safe-harbor provision for short-form warnings in 2016 to accommodate concerns about the burden of providing Prop 65 warnings on-pack, particularly for products with small labels. At the time, OEHHA said that this short-form warning would strike a balance by “provid[ing] useful information to individuals while avoiding unwieldly on-product warnings.”
OEHHA’s proposal would roll back the utility of this provision by requiring at least one Prop 65 chemical to be listed for each endpoint, meaning cancer or reproductive harm. OEHHA said in its Initial Statement of Reasons that the proposal is needed to help curb the perceived over-use of Prop 65 warnings as a prophylactic measure to mitigate Prop 65 risk. OEHHA argued that the prophylactic use of short-form warnings confuses consumers and dilutes the overall value of Prop 65 warnings. OEHHA’s proposal would also clarify that food products (including dietary supplements) are eligible to use short-form warnings.
Virtually all commenters in attendance strongly opposed OEHHA’s proposal. Many commenters argued that adding a chemical name does not create a meaningful consumer benefit because consumers can already choose which products to avoid based on the presence of a Prop 65 warning. Even if consumers do want to know which Prop 65 chemical is present, the proposal only requires companies to declare one chemical for each endpoint, which may provide incomplete information to consumers and therefore cause additional confusion. Commenters requested an extension of the two-year grace period afforded by the proposal and requested the ability to sell through all pre-printed labels, even if the labels have not been applied to manufactured products at the end of the two-year period. Commenters also observed that the costs of compliance may be many times higher than estimated and said that adding chemical names would create an undue burden for products with small labels.
More broadly, one commenter observed that OEHHA’s proposal is attempting to treat a symptom of a larger problem, which is that Prop 65 creates a “bounty hunter” climate in which private enforcers issue notices or sue after detecting even trace levels of Prop 65-listed chemicals. Companies then have the burden of proving that the detected levels pose no significant risk—an endeavor that can be time consuming and costly, even if the business could ultimately be successful. As a result, companies have an incentive to prophylactically use Prop 65 warnings to help insulate the business from liability. OEHHA’s proposal does not address these underlying incentives.
While not the subject of public comment in the hearing, OEHHA’s proposal would also require consumer products sold online to provide two Prop 65 warnings: one on the product display page or otherwise prominently provided before the consumer completes the online purchase, and another on or with the product when delivered to the consumer. Catalogs would similarly need to provide a warning both in the catalog and on or with the product when delivered to the consumer.
We are aware of some confusion among industry regarding whether short-form warnings could be used to satisfy the online prong of the proposed double-warning requirement. OEHHA’s proposal would allow the online and on-pack warning requirements to be satisfied if the warning meets the content requirements of Section 25603, which addresses both long-form and short-form warnings for consumer products. OEHHA’s Initial Statement of Reasons confirms that the Office intended to “provide the option of using either full-length or short-form warnings” to satisfy warning requirements for internet purchases. One commenter that supported OEHHA’s proposal specifically requested that OEHHA change its proposal to permit only long-form warnings to be used online. We anticipate that the issues of double warning and short-form warnings provided online will be the subject of written comments, which, as noted above, can be submitted through January 3, 2024 under the extended deadline.
If you have any questions concerning the material discussed in this client alert, please contact the members of our Food, Beverage, and Dietary Supplements and Litigation and Investigations groups.
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