Overview
Well, if at first you don’t succeed…
A big change is proposed for California’s Proposition 65, the right-to-know warnings law.[1] The regulations currently allow two choices of “safe harbor” warning language which, if used as specified, serve as a complete defense to a violation claim. The choices are known as the long-form and short-form warnings. On October 27, 2023, the state agency that oversees Prop 65 regulations, the Office of Environmental Health Hazard Assessment ("OEHHA"), gave notice it intends to change the short-form warning regulation for consumer products. The change will effectively kill it. This is the agency’s second attempt to do so. The first one lapsed in 2022 when the agency failed to meet the deadline for regulatory approval. Public comments concerning this proposed regulation are being accepted through December 20, 2023.
The short-form warning currently acts as a curb on bounty hunters serving violation notices with questionable merit that require businesses to decide whether to litigate or settle, with the bounty hunter knowing almost everyone will choose to settle to avoid the heavy cost and risk involved defending these cases. Losing this option will mean more expense – either requiring businesses to get (still more) expensive testing, or simply causing more settlements by defendants who cannot afford the testing and have to risk selling with no warnings.
Short-Form v. Long-Form Warning
Prop 65 requires warnings for chemicals that the state determines can cause cancer or birth defects and reproductive harm where exposure to the chemicals exceeds an established safe harbor level. These are the two endpoints. Currently, the short-form warning does not need to identify a chemical being warned about, only the endpoint, while the long-form warning requires both the chemical and the endpoint be identified, as well as specific language the short-form warning need not include. To be compliant, both the short and long-form warnings must include the infamous yellow triangle with the exclamation point inside it and the word “WARNING,” as well as identify the Prop 65 warnings website inside a box. The short-form warning then need only identify one or both of the two endpoints – cancer and/or reproductive harm.[2] In contrast, the long-form warning needs to include the detailed warning language almost every reader has seen: “This product can expose you to lead, a chemical known to the state of California to cause (name one or both endpoints).” For food, the long-form warning is slightly different and there is no short-form option.
The Short-Form Warning is Both Short and Sweet
The short-form is popular because it is, well, short. For example, if you want to warn about vinyl chloride for cancer and DEHP for reproductive harm, the long-form warning would say, “this product can expose you to chemicals including vinyl chloride, which is known to the State of California to cause cancer, and DEHP which is known to the State of California to cause birth defects or other reproductive harm…” That is both clunky language and takes up a lot of space on labeling. The short-form does away with all this. If you want to use the short-form warning and warn for lead in the product, for example, and want to warn for both endpoints, the warning need only say “cancer and reproductive harm” after the triangle and the word ‘WARNING,” along with the listing of the website. If warning for just reproductive harm it need only say “reproductive harm.” Wham, bam and done.
Short-Form to Become “Long-Form Lite”?
OEHHA’s proposed rulemaking seeks to effectively kill the short-form warning and make it “long-form lite.” The proposed regulation would require the short-form warning include the name of the chemical being warned about just like the long-form warning does. It would continue to require the triangle and exclamation point, but would allow the option of using “CA” or “CALIFORNIA” before ‘WARNING.”[3] It would also continue to require the font be no smaller than 6-point, but the size of the warning font to be "considered against the entire package" and the test is whether it is conspicuous in relation to the rest of the labeling on the packaging.[4] The proposed revision would allow the choice of using “can expose you to,” the phrase required in the long-form warning, or the term “risk from exposure.” So, under the revised regulation, a compliant short-form warning could say “WARNING,” “CALIFORNIA WARNING,” or “CA WARNING” and then:
If warning for a carcinogen:
“Cancer risk from exposure to [name of chemical]. See www.P65Warnings.ca.gov.”; or
“Can expose you to [name of chemical], a carcinogen. See www.P65Warnings.ca.gov.”
Where you are warning for both cancer and reproductive harm, the options would look like this:
“Risk of cancer from exposure to [name of chemical] and reproductive harm from exposure to [name of chemical]. See www.P65Warnings.ca.gov.”;
“Can expose you to [name of chemical], a carcinogen, and [name of chemical], a reproductive toxicant. See www.P65Warnings.ca.gov.”[5]
Note that the term “reproductive harm” is used if “risk of” is used and “reproductive toxicant” is used where “can expose you” is used.
Food and the Short-Form
The proposed regulation would allow for the first time the use of a short-form warning for food. It would require the same structure as the proposed short-form for products, but would still not require the triangle and exclamation mark.[6] The difference between the proposed food and product short-form warning language is minor. As with the proposed short-form warning for products, the proposed food short-form warning language could use the terms “risk of” or “can expose.” A food warning would still need to include “/food” after “.gov” in the listed website as it does now.
Why Take Away a Popular Option?
OEHHA says that the proposed amendment is necessary “to make the Proposition 65 short-form warning more informative to consumers.”[7] The agency cites what it calls the unintended consequence of offering the short-form warning for products that it says has resulted in its overuse in ways other than what the agency expected. It claims the short-form was envisioned for small-sized packaging where the language from the long-form warning would take up too much space, but says that it has become overused by companies using it on products regardless of the size of the packaging on the one hand, and using it as a prophylactic warning without knowing what chemicals are in the product on the other.
The agency says some businesses are using short-form warnings as a “litigation avoidance” strategy for exposures to listed chemicals that do not or cannot occur from use of their products, which it says does not serve Proposition 65’s purpose of providing relevant hazard information to consumers about Proposition 65-listed chemicals in products they may use.”[8] This demonstrate one of the main problems with this law.
Changing the Language Does Not Change the Problem
OEHHA’s position illustrates the disconnect between a government goal and the real world of small business. Prop 65 is already a burden and often forces companies to choose whether to warn to avoid the cost of a violation notice even though the product is safe, or not warn and take the chance a bounty hunter won’t file a notice against it necessitating a costly settlement. All it takes to initiate a Prop 65 claim is the product or food being shown to contain a detectible amount of a Prop 65 chemical. At that point the burden shifts to the company to prove the level of exposure to the chemical is not high enough to trigger a warning. Absent any immediate defenses, a defendant getting a notice usually opts to settle to avoid the expense and risk of litigation. In other words, while the state sees the short-form warning as failing to provide specific information about exposure, it is downplaying the simple fact that it is also one of the few ways a company can buy predictability and compliance.
OEHHA also seems to ignore the 300-pound gorilla in the room – PFAS chemicals. Some PFAS chemicals are on the Prop 65 list and more will be added. They are in so many products it is impossible for many businesses to know which ones and in what amounts. Not everyone can afford expensive testing (and the proper PFAS test methods are in dispute). Taking away the ability to warn prophylactically opens small and midsize businesses up for a wave of new violation claims by zealous bounty hunters.
A Two-Year Proposed Phase-In Period
OEHHA is proposing an extra year for compliance, meaning the regulation if approved would take effect two years after approval by the state administrative law agency. The proposed regulation would allow a sell through, meaning any product manufactured and labeled before the two-year date could continue to use the current short-term version. To be compliant, product made after that point must carry the new version.[9] OEHHA is holding a public hearing on the proposed changes on December 13, 2023, and public comments must be received by December 20, 2023.
[1] CA Health & Safety Code § 25249.6, et al.
[2] 27 CCR § 25603(a) and (b).
[3] Sections 25601(b), 25603(a)
[4] Section 25602(a)
[5] Section 25603(b)
[6] Section 25607.2
[7] Initial Statement of Reasons, October 27, 2023, p. 2.
[8] Id., p. 7.
[9] Section 25603(c)
