The following is an opinion piece by Sedina L. Banks and Sherry E. Jackman, partners in Greenberg Glusker’s environmental group, specializing in environmental compliance and litigation.
As we rang in the New Year on January 1, 2025, significant changes to California’s Proposition 65 “clear and reasonable warnings” regulations became effective. These changes will impact how companies label their products to comply with Prop 65’s warning requirements, including the so-called “short-form” warning requirements.
Background on Safe Drinking Water and Toxic Enforcement Act
Prop 65, officially referred to as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses with 10 or more employees to provide a “clear and reasonable” warning before exposing individuals in California to any listed chemical that may cause cancer, birth defects/reproductive harm, or both. This list includes almost 1,000 chemicals ranging from naturally occurring to human-made chemicals and continues to grow as new chemicals are periodically added.
In 2018, regulations were adopted by the Office of Environmental Health Hazard Assessment (OEHHA), the lead California regulatory agency tasked with implementing Prop 65, that provided certain “safe harbor” warning language, which allowed businesses to use a “short-form” warning on non-food products that did not require identification of a specific chemical associated with each “endpoint” harm (i.e., cancer and/or birth defects/reproductive harm). For this reason, many businesses relied on the short-form warning in lieu of a “long-form” warning that required identification of one or more specific chemicals.
OEHHA did not initially allow a short-form warning for food products. Instead, food products were required to use a specifically tailored long-form warning which required the identification of a specific chemical associated with each endpoint harm.
An overview of the Prop 65
The new Prop 65 safe harbor warning requirements, including those affecting food products, depart significantly from the prior requirements:
Chemical Identification Required: All warnings, including short-form warnings, will be required to identify at least one chemical per endpoint harm.
Under the new amendment, a short-form warning on the packaging of a food product must include:
- The phrase “WARNING,” “CA WARNING,” or “CALIFORNIA WARNING” in capital letters and in bold print.
- Identification of at least one detected chemical with the relevant endpoint (e.g., whether the chemical is a listed carcinogen, reproductive toxin, or both).
- Display of the Proposition 65 food-specific warning website.
OEHHA stated in its Final Statement of Reasons in support of the new requirements that this change would make the “short-form warning more informative to consumers by adding at least one chemical name and by providing additional warning options for businesses to select from.” Notably, safe harbor warnings for food products already required identification of a specific chemical for each endpoint harm. Therefore, the new requirements for non-food products make the warnings more consistent across all product types.
· Food Warnings: Tailored short-form warnings can now be used for food products.
· Internet Warnings: There is now clarification of the internet warning requirements and a retail seller’s responsibility to post internet warnings.
· Lengthy Compliance Transition Period: Businesses can still use the formerly permitted warning language for products manufactured and labeled prior to January 1, 2028. This three-year compliance transition period allows for an unlimited sell-through period for products manufactured and labeled with the existing short-form warnings before the expiration of the three-year transition period. The regulated community supported this longer transition period from the shorter period OEHHA originally proposed.
There are additional requirements for non-food products as well, such as prefix warning options and new tailored safe harbor warnings for passenger or off-highway motor vehicle parts and recreational marine vessel parts.
Although these changes will be difficult and costly for many companies to implement, overall, the law represents good news for companies manufacturing, distributing, and selling food products. The new requirements now allow food products to bear specifically tailored short-form warnings:
· The ability to signify that the Prop 65 warning is a California-specific requirement appeals to the regulated community, which often receives inquiries from non-California consumers unfamiliar with California’s Prop 65.
· Food warnings can use optional short-form warning language. For example, for exposure to lead and lead compounds (a chemical commonly found in food products), which have been identified as causing cancer and reproductive harm, the warning can include either of the following:
- Risk of cancer and reproductive harm from exposure to lead and lead compounds. See www.P65 Warnings.ca.gov/food.
- Can expose you to lead and lead compounds, a carcinogen and reproductive toxicant. See www.P65 Warnings.ca.gov/food.
- Food warnings must still be enclosed in a box and set off from other surrounding information.
- Businesses have the option to continue to use the existing long-form warning for food products. This means a company can choose whether to apply the new short-form warnings to their products at their discretion, with no mandated compliance period.
The full impact of these new requirements depends on the type of product being labeled. Short-form warnings for non-food products must now, for the first time ever, specify a chemical for each type of harm. This added specificity will likely complicate and increase the cost of compliance for businesses. On the other hand, the new regulations provide more options for Prop 65 warnings on food products. It is likely that many food product manufacturers, distributors, and retailers will prefer the new safe harbor short-form warnings to conserve space and simplify the warning.
Regardless of the warning used, companies should ensure that they are complying with Prop 65 requirements. Noncompliance penalties can be steep — up to $2,500 per day for each violation (with a “violation” typically considered a California sale or “exposure”) plus plaintiff’s attorneys’ fees and costs.
Don’t overlook these important changes as the new year begins. If compliance seems costly, compare it to the expense of noncompliance.