Prop 65 Update: OEHHA Takes Aim at Short-Form Warnings – Update from Nijman Franzetti, LLP

Proposed amendments seek sweeping changes to the popular short-form Prop 65 warning. Any company using this warning must revise their labeling. Companies will no longer be allowed to use the “just label everything” strategy as the short-form warning now will require identification of at least one product-specific Prop 65 chemical.

Regulatory Background: California’s Environmental Protection Agency, Office of Environmental Health Hazard Assessment (OEHHA) proposed changes to amend Article 6 Clear and Reasonable Warnings in Section 25601. This section sets forth “safe harbor” warning options, including warnings for consumer product exposures. Article 6 of the regulations implements California’s Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Prop 65. While the “safe harbor” warnings are not mandatory, any manufacturer, distributor or retailer that varies from these approved warning options invites unwanted enforcement scrutiny.

There has been increased scrutiny of the short-form label by OEHHA and rumblings that the Agency felt the short-form warning was being overused. OEHHA advised in its 2017 Q&A document that while the intent of the short-form label was for use on small products where space was limited, there was no express prohibition on using the label on larger products. Many manufacturers added a short-form warning so they would not be required to undertake expensive and time-consuming product testing to identify a specific chemical among the 900+ chemicals on the Prop 65 list. Regulated businesses, often prompted by their trade associations and other industry groups, gravitated towards placing these short-form warnings on both their products and websites deciding this approach resulted in the most cost effective compliance alternative.

Prop 65 Amendments: Proposed amendments modify the existing short-form warning provisions as follows:

1. Allow use of the short-form warning only on small products of 5 square inches or less;

2. Eliminate use of short-form warnings for internet and catalog warnings;

3. Clarify how short-form warnings can be used for food products; and

4. Require that the name of at least one Prop 65 product-specific chemical be included in the short-form warning.

Comments can be submitted online at until Mar. 8, 2021. It seems likely these amendments will be adopted and if so, will become effective a year later. The current short-form warning can continue to be used on products manufactured prior to the effective date.

Action Needed: Companies need to take a critical look at product labels currently using the short-form warning and determine what specific Prop 65 chemicals are present in products in order to identify at least one appropriate chemical in the warning. While this does not necessarily require a company to test all of its products, product-specific information will need to be collected in some fashion either through suppliers or by testing. If companies are selling products online and/or in catalogs, these warnings will need to be reviewed and updated too. Given the lead time required to develop the necessary information, design and print new packaging or labeling, the time is now to start this process.