In the final days of 2024, California's Office of Environmental Health Hazard Assessment (OEHHA) promulgated amendments to Proposition 65's safe harbor warning regulations. OEHHA had originally proposed new short-form warning requirements in 2021, which stalled. OEHHA then restarted the rulemaking process in 2023, resulting in these final 2024 amendments.

The new short-form warnings are no longer so short. The short-form warnings must now include at least one chemical name that corresponds to each risk endpoint (cancer and/or reproductive risk); the previous short-form warning safe harbors had no such requirement. A business need identify only one chemical per reproductive or carcinogen risk. In other words, if there are multiple chemicals for each risk category endpoint, Proposition 65 requires a business to display only one per endpoint. In addition, businesses that prefer to use the safe harbor warning will have multiple options for satisfying the "WARNING" language requirement of Proposition 65. The new language can be used as of January 1, 2025. Businesses can continue to use short-form warnings without naming specific chemicals throughout a three-year transition period until January 1, 2028.

Background

Proposition 65 requires businesses to provide "clear and reasonable" warnings to people in California prior to causing an exposure to a chemical known to the state to cause cancer, birth defects, or other reproductive harm. The state publishes a list of those chemicals, which has grown to over 1,000 chemicals. The chemicals on the publicly available list include those found in food, pesticides, household products, drugs, and dyes.

OEHHA regulations provide safe harbor warning content and methods of transmission for various product categories and exposures. Compliance with the safe harbor warning regime is deemed to be compliance with Proposition 65. While businesses are not legally required to follow the safe harbor warning regulations and can develop their own "clear and reasonable" warnings, many businesses choose to use these warnings in order to benefit from safe harbor protections. Safe harbor warnings may follow a long or short format.

Who is Affected?

Proposition 65 applies to all businesses with ten or more employees doing business in California. Businesses that chose to provide a warning may apply a warning to the product label or labeling or may provide notice and warning materials to an authorized agent of a downstream entity with an acknowledgment of receipt.

What are the Key Changes to the Short-Form Warning?

1. Three-year transition period. A short-form warning on a product manufactured on or after January 1, 2028, seeking safe harbor protection, must have the new short-form warning language. Businesses can transition to the new short-form warning language beginning January 1, 2025. Products manufactured and labeled with short-form warnings that do not name specific chemicals prior to and during the three-year transition will have an unlimited sell-through period.
2. Internet sales. For internet purchases made prior to January 1, 2028, a retail seller must display the new short-form warning online 60 calendar days after the retailer receives notice of the new short-form warning from a manufacturer.
3. Additions to "WARNING" language options. In both long- and short-form safe harbor warnings, the amendments allow "CA Warning" or "CALIFORNIA WARNING" in addition to the word "WARNING" to indicate the warning is being given under California law.
4. Changes to short-form warning content for consumer products and food. The amendments make changes to the content requirements for a safe harbor short-form warning on consumer products and introduce a safe harbor short-form warning for food.

The new short-form warning options for food are:

1. For exposures to listed carcinogens, the words:
   1. "Cancer risk from exposure to [name of chemical]. See www.P65Warnings.ca.gov/food"
   2. Or "Can expose you to [name of chemical], a carcinogen. See www.P65Warnings.ca.gov/food."
2. For exposures to listed reproductive toxicants, the words:
   1. "Risk of reproductive harm from exposure to [name of chemical]. See www.P65Warnings.ca.gov/food"
   2. Or "Can expose you to [name of chemical], a reproductive toxicant. See www.P65Warnings.ca.gov/food."
3. For exposures to both listed carcinogens and reproductive toxicants, the words:
   1. "Risk of cancer from exposure to [name of chemical] and reproductive harm from exposure to [name of chemical]. See www.P65Warnings.ca.gov/food"
   2. Or "Can expose you to [name of chemical], a carcinogen, and [name of chemical], a reproductive toxicant. See www.P65Warnings.ca.gov/food."
4. For exposures to a chemical that is listed as both a carcinogen and a reproductive toxicant, the words:
   1. "Risk of cancer and reproductive harm from exposure to [name of chemical]. See www.P65Warnings.ca.gov/food"
   2. Or "Can expose you to [name of chemical], a carcinogen and reproductive toxicant. See www.P65Warnings.ca.gov/food."

Proposition 65 can be enforced by the California attorney general's office and any district attorney or city attorney, for cities with populations exceeding 750,000 or, most commonly, private enforcers. Penalties for violating Proposition 65 by failing to provide notice can be up to $2,500 per violation per day. 

Key Takeaways

Regulated businesses should consider now whether any steps should be taken to comply with the new regulations during the three-year transition period. Companies should review their portfolio of products sold in California for use of the short-form or long-form Proposition 65 warning labels.

For those products for which companies or others in the supply chain are using the short-form warning:

1. Commence supply chain inquiries and analysis as to the Proposition 65-listed chemicals that are the reason for the short-form warning
2. Commence communications with all vendors of those products into the State of California (e.g. online, distributors, in-store) regarding new language needed on product labels, shelves, marketing materials, websites, etc.
3. Ensure that timelines sync in production and sales cycles to achieve new compliance requirements on January 1, 2028.

Authors

Maureen Gorsen, J.D. is a Partner at Sidley Austin LLP and member of the firm's Environmental practice, focusing on enforcement defense and regulatory compliance. Maureen has defended clients in both federal and state enforcement matters, including hazardous waste, emissions controls, stormwater, air quality, AB 32, California's Proposition 65, product labeling, plastic packaging, and business and tax regulation. 

Amy Lally, J.D. is a Partner at Sidley Austin LLP. She serves as a global co-leader of Sidley Austin LLP's Consumer Class Actions practice. She has broadly represented the consumer products and services industries in litigation arising under state and federal laws, including California's Proposition 65.

Simone Jones, J.D. is a Partner at Sidley Austin LLP. She defends clients in environmental and toxic tort litigation and product liability matters and representing corporations and executives in internal and criminal investigations