Last month, the California Office of Environmental Health Hazard Assessment (OEHHA) issued proposed revisions to its Proposition 65 (Prop 65) warning requirements that would implement numerous changes. In its Statement of Reasons, OEHHA anticipated the proposal would reduce “prophylactic warnings” applied as a litigation avoidance strategy and reduce litigation by providing clarity in warnings. OEHAA maintains that that these amendments would also enhance clarity for consumers.

The agency is seeking comment on its proposal through Dec. 20, 2023.

Under Prop 65, individuals must provide warnings prior to exposure to a chemical identified by the State of California to cause cancer or reproductive harm. The Prop 65 duty to warn applies to companies at varying levels in the supply chain, including product manufacturers, employers and individuals causing exposures in an affected area. Prop 65 requires the State of California maintain a list of chemicals that are known to the State to cause cancer, birth defects or other reproductive harm, or both. The Prop 65 list includes over 900 chemicals since it was published in 1987.

The agency’s proposal would provide for the following changes to the Prop 65 warning requirements:

  • All short-form warnings must identify at least one chemical associated with each toxicity end point (carcinogen and/or reproductive toxin). This requirement would be mandatory for all products manufactured two-years after the effective date. Products manufactured prior to that time can be sold indefinitely labeled with current warnings.
  • Warnings can include the phrases, “CA WARNING” or “CALIFORNIA WARNING,” instead of just “WARNING” as noted in current regulations.
  • Minimum font size must be at least 6-point type. OEHHA proposes removing the requirement that Prop. 65 label language must be no smaller than the largest type size used for other consumer information.
  • Internet purchases must include a warning on the product display page, a link to the warning on the product display page or another prominent warning prior to product purchase. The product must also have an on-product warning upon receipt by the consumer.
  • Catalogs must also include a warning that clearly associates the warning with the product. The product must also have an on-product label.
  • OEHHA proposes labels for vehicles and vehicle parts affecting:
    • Passenger or off-highway motor vehicle parts.
    • Passenger or off-highway motor vehicles.
    • Recreational marine vessels.
    • Recreational marine vessel parts.

In January 2021, OEHHA proposed a similar amendment that was never finalized following concerns raised by industry.

ACA will be filing comments by the Dec. 20 deadline, as well as participating during an OEHHA-hosted public hearing on December 13 at 10:00 am (PST). More information, including the agency’s Prop. 65 regulatory text with proposed changes and Statement of Reasons is available online.

Contact ACA’s Riaz Zaman for more information.