California Updates Proposition 65’s Short-Form Safe Harbor Warnings

The California Office of Environmental Health Hazard Assessment recently approved an amendment to the so-called “short-form” safe harbor warnings under the state’s Proposition 65 law. The changes will alter the regulations that provide for safe harbor warnings applicable to consumer products, food products, internet sales, and passenger or off-highway motor vehicle parts and recreational marine vessel parts. The amendment is set to take effect on January 1, 2025, but the regulations contemplate a three-year transition period for businesses that were using the current short-form safe harbor warnings.

BACKGROUND

Proposition 65, an initiative more formally known as the Safe Drinking Water and Toxic Enforcement Act of 1986, was codified as California Health and Safety Code Sections 25249.5 through 25249.14. Proposition 65 requires businesses to provide warnings to Californians about exposures to chemicals that have been identified by the state as known to cause cancer, birth defects, or other reproductive harm.

Businesses selling products that expose Californians to the listed chemicals must provide “clear and reasonable warnings” unless the exposure would pose no significant risk. The regulations provide two options for “safe harbor” warning language that has been deemed by the state to constitute a “clear and reasonable warning.” The two options are known as long-form and short-form warnings.

Short-form warnings were most recently amended during a 2016 rulemaking intended to require more explicit warning language. In public comment, some expressed concern that the safe harbor warning language under consideration at that time would not fit on small products, labels, or containers. At that time, the regulations contemplated short-form warnings that did not require businesses to identify a specific chemical. Instead, the label only needed to identify the risk (i.e., cancer, reproductive harm, or both). The regulations did not limit the use of short-form warnings on any consumer product, regardless of its size.

Following implementation, the Office of Environmental Health Hazard Assessment (OEHHA) expressed concerns about the number of businesses using short-form warnings and the lack of chemical identification. Accordingly, on October 27, 2023, OEHHA issued a notice of proposed rulemaking to modify short-form warnings. The proposed amendment was approved on November 26, 2024.

KEY CONSIDERATIONS IN ANTICIPATION OF NEW SHORT-FORM WARNINGS

1. New Warning Requirements for Consumer Products

Warning language must now include at least one specific chemical in order to comport with the safe harbor regulations. Short-form warnings will need to name at least one chemical for each type of exposure pathway (i.e. cancer, reproductive harm, or both). If there are two separate chemicals—one posing a risk of cancer and the other a risk of reproductive harm—the short-form warning must include both chemicals.

The regulations also change the language used in the warning to include “Cancer risk from exposure to [chemical]” or “Can expose you to [chemical], a carcinogen.” In addition, while the warning symbol consisting of a black exclamation point with a yellow triangle is still required, businesses may now opt for the phrase “CA WARNING” or “CALIFORNIA WARNING” instead of just “WARNING,” which would highlight the California-specific nature of the warning. Finally, the amendments clarified that short-form warnings must be “prominently displayed,” and short-form warnings cannot appear smaller than six-point type.

As an example, a short-form warning for exposure to the carcinogen formaldehyde may appear as either:

 CA WARNING: Cancer risk from exposure to formaldehyde. See www.P65Warnings.ca.gov.
 WARNING: Can expose you to formaldehyde, a carcinogen. See www.P65Warnings.ca.gov.

2. Food Warnings

In addition to the changes to safe harbor consumer product warnings above, the amendment to safe harbor short-form warnings specifically for food require that the warning refer to a different website. The short-form warning for food does not require the warning symbol. For instance, a short-form warning for food exposure to lead may appear as:

 CA WARNING: Can expose you to lead, a carcinogen and reproductive toxicant. See www.P65Warnings.ca.gov/food

3. Internet Purchases

OEHHA clarifies that warnings for products sold only over the internet can be provided in one of three ways: (1) on the product display page; (2) through a clearly marked hyperlink using the words “CA WARNING,” “CALIFORNIA WARNING,” or “WARNING” that links to the warning; or (3) an otherwise prominently displayed warning provided prior to purchase that the consumer does not have to search for in the general contents of the website. Internet retailers are given a 60-day grace period during the three-year implementation to update internet warnings when they receive a notice from the manufacturer or distributor that a new short-form warning is required.

4. Passenger or Off-Highway Motor Vehicle Parts and Recreational Marine Vessel Parts

The new amendment applies to passenger or off-highway motor vehicle “parts.” Parts include replacement parts like plastic and metal fittings and housings, bulbs, nuts and bolts, belts, filters, and the like. The amendment “allows additional tailored warning options for businesses. Businesses that wish to use the new tailored warning may do so once the regulations become effective or at any time afterwards.”

The new tailored warning allows businesses to use a general warning for potential exposure to listed chemicals, combined with a recommendation that the consumer practice good industrial hygiene. The warning must include the warning symbol and the signal words “CA WARNING,” CALIFORNIA WARNING,” or “WARNING.” If a business opts for this new warning, it may appear as:

WARNING: Handling passenger or off-highway motor vehicle parts can expose you to chemicals such as phthalates and lead, which can cause cancer and reproductive harm. To minimize exposure, service the vehicle in a well-ventilated area, wear gloves, and wash your hands. For more information see Vehicles – Passenger and Off-Highway Motor Vehicles – Proposition 65 Warnings Website (ca.gov).

A similar warning is available for exposure to individual replacement parts for recreational marine vessels. A warning for these products must also include the warning symbol and the signal words “CA WARNING,” “CALIFORNIA WARNING,” or “WARNING.” The tailored warning may appear as:

 CA WARNING: Handling recreational marine vessel parts can expose you to chemicals such as phthalates and lead, which can cause cancer and reproductive harm. To minimize exposure, service the vessel outdoors or in a well-ventilated area, wear gloves, and wash your hands. For more information see www.P65Warnings.ca.gov/marine-vessel-parts

5. Transition Period

The regulation has a three-year transition period. As such, warnings that comply with the preexisting safe harbor regulations will continue to be considered by the state to have met the “clear and reasonable” requirement for three years after the effective date of the regulation.