On December 6, 2024, the California Office of Environmental Health Hazard Assessment (OEHHA) issued a notice stating that the Office of Administrative Law (OAL) approved changes to the Proposition 65 (Prop 65) Article 6 “clear and reasonable warnings” regulations for “short-form” warnings (Notice). The changes adopted are to the proposed regulations that OEHHA issued on October 27, 2023. The history of these amendments, dating back to January 2021, are set forth in our memoranda available here. The effective date for the regulations is January 1, 2025, with a three-year implementation period.

Short-Form Warning Requirements

A summary of the requirements for the content of the warnings and how those warnings are transmitted follows:

• Inclusion of Chemical Name: Warnings must now include at least one chemical name for each applicable endpoint (i.e.,cancer and/or reproductive toxicity) in short-form warnings. OEHHA states this change is intended to promote transparency for consumers by identifying the specific substances triggering the warning. OEHHA is basing its decision on its experience and its “informal analysis that consumers need more information than they are receiving from the short-form warnings.” Final Statement of Reasons (FSOR) at 21.
• Options for Warning: While the regulations are specific in the warning language required, including the yellow warning triangle with exclamation point (), the statement of “Cancer risk” or “risk of reproductive harm” from exposure to a listed chemical, and inclusion of the website (i.e., www.P65Warnings.ca.gov), companies now have the option of using “WARNING,” “CA WARNING” or “CALIFORNIA WARNING.” These options are intended to provide businesses with the ability to identify the warnings as California-specific signal words on products that may be sold outside the state.
• Label and Font Size: The short-form warning can be used on any label size, provided the text is at least 6-point font and is “conspicuous” as defined in the regulations (i.e.,“conspicuousness as compared with other words, statements, designs or devices on the label, labeling, or sign, as to render the warning likely to be seen, read, and understood by an ordinary individual under customary conditions of purchase or use”). OEHHA did not adopt changes to require font size to be proportional (i.e.,no smaller than the largest type size used for other consumer information on the product) to other text size used to communicate other consumer information on the product.
• Method of Transmission: No changes were made to the methods of transmission of short-form warnings. OEHHA states businesses are “free to experiment with various methods of delivery for the warning” but noted that when considering a method of transmission for a warning, OEHHA considers the timing of receipt of the warning (i.e., before purchase and before exposure) and the level of effort required for a consumer to access the information. Id. at 13. OEHHA states: “In general, the warning must be automatic, require very little effort to locate, and be clearly associated with the product to qualify for safe harbor protection.” Id. OEHHA states in the FSOR that providing warnings via texts or e-mails sent after the purchase of the product, near the time of delivery, does not qualify for safe harbor protection under the existing regulations. Id.
• Internet and Catalog Warnings: OEHHA has reverted to the original regulation text for Internet and catalog warning content by removing language that warnings are required when the product is delivered. While this might appear to be in response to industry comments that OEHHA’s proposal potentially requiring multiple warnings was burdensome and unnecessary, OEHHA states that “[e]xisting language already requires two warnings for internet purchases– one prior to purchase and one ‘also’ prior to exposure.” Id. at 72. OEHHA further states that it “intends to revisit the issue of internet and electronic warnings in a future rulemaking.” Id.
• Retailer Grace Period: A new provision provides Internet retailers a 60-day grace period, commencing from the date they receive a warning or written notice that a product will have new warning content, to update their online short-form warnings during the three-year transition period.
• Food Warnings: The regulations now clarify that the short-form warning can be used for food. The differences between warnings on a food product and other consumer products are that a short-form warning on a food product should: (1) not include the triangle and exclamation point symbol; and (2) include “/food” after “.gov” in the listed website.
• Tailored Warnings: OEHHA has set forth new tailored safe harbor for the following specific product categories: (1) passenger or off-highway motor vehicle parts exposure warnings; and (2) recreational marine vessel parts exposure warnings. OEHHA states these warnings are intended to provide businesses with compliance flexibility and clarity for these products.

Businesses have three years — until January 1, 2028 — to transition to these revised short-form warning requirements. In addition, any products that were labeled with the short-form warning language as the regulations allowed before this transition period expires (January 1, 2028) may continue to be sold indefinitely without the need for relabeling. This unlimited sell-through allowance period is intended to minimize disruption to existing inventory.

Commentary

Several revisions are helpful, including allowing language to clarify that the warning is a California-specific requirement, extending the transition period to three years, providing a sell-through provision, and including a grace period for retail sellers to update warnings. Similarly, it is helpful that OEHHA reversed course and did not adopt certain changes as proposed that would have been challenging or burdensome to implement. These include changes to the Internet/catalog warnings and label and font sizes. These may crystallize the adage of winning the battle but losing the war. The requirement to specify a Prop 65-listed chemical changes the purpose and advantage of the prior short-form warning. OEHHA states in the FSOR that the short-form warning is now 8-14 words while the full-length warning is 26-44 words. This misses the context, however, and the problems that companies face in attempting to determine, to the parts per million or parts per billion level, whether a product may contain a Prop 65-listed chemical. Industry must now use the time provided to determine how to modify warning language to be compliant with the new requirements.