Prop 65: Will the “Short-Form” be Short Lived?

Enacted as part of the Safe Drinking Water and Toxic Enforcement Act of 1986, Proposition 65 (“Prop 65”) requires businesses with ten or more employees that sell products in the state of California to provide notice to consumers of health risks that are associated with certain chemicals if contained in the products. The list of chemicals for which notice must be provided must be updated annually and now totals over 900 chemicals. As most industry professionals are well aware, notice is provided by the familiar warning label.

The California Office of Environmental Health Hazard Assessment (“OEHHA”), which is charged with administering the statute, promulgated significant revisions to its Prop 65 regulations in 2016. Those revisions, which became effective in 2018, among other things, allowed businesses to use a new warning known as an “on-product” or “short-form” warning. With the adoption of the short-form warning, it appeared OEHHA was providing a warning that could be used in situations where the surface area of a product was limited. However, whether through sloppy drafting or some other oversight, the revised regulations did not restrict use of the short-form warning. While use of the short-form warning does come with some requirements, such as font-size and some use restrictions, given that less information is required to meet the notice standard, use of the short-form warning became fairly ubiquitous by those looking to comply with Prop 65 requirements.

In what appears to be an attempt designed specifically to correct its oversight, OEHHA proposed new amendments to the Prop 65 warning regime in January 2021. The proposed amendments would significantly modify the content and method by allowing use of short-form warnings only when:

1. the total surface area of the product label available for consumer information is five square inches or less;
2. the package shape or size cannot accommodate the full-length warning; and
3. the entire warning is printed in a type size no smaller than the largest type size used for other consumer information on the product, and in no case less than six-point font.

The proposal continues the existing short-form warnings requirements including:

1. the symbol:
2. the word “WARNING” in all capital letters and bold print,
3. a warning statement indicating carcinogens and/or reproductive toxicants exposures, and
4. at least one carcinogen and/or reproductive toxicant.

As expected, industry representatives pushed back on OEHHA’s proposed amendments as a costly and unnecessary revision upending warning requirements that just went into effect a little over two years ago. Further, while the state of California retains enforcement authority for Prop 65 compliance, attorneys using the statute’s private attorney general provision threaten the lion share of suits against businesses. This segment of the California legal bar will undoubtedly be actively monitoring amendments to the regulations so that it can start firing out the next wave of demand letters to businesses across the country if and when the amendments take effect.

Verrill will continue to monitor the latest Prop 65 developments and provide regular updates, as necessary, through its blog or select client alerts. Comments on OEHHA’s proposal were due to the agency by March 8, 2021. If promulgated as proposed, the amendments would take effect one year after issuance. In the meantime, Verrill can also assist with all facets of Prop 65 compliance, including developing compliant warnings, properly responding to inter-supply chain information requests or crafting a tactful response to an aggressive demand letter.