California Updates Prop 65 Short-Form Warning Requirements

On January 1, 2025, new regulations governing Proposition 65's so-called safe-harbor warnings went into effect.

Proposition 65 requires businesses that employ 10 or more persons to provide "clear and reasonable" warnings on food and consumer products containing significant levels of a Proposition 65 listed chemical. While "clear and reasonable" warnings are not defined, California's Office of Environmental Health Hazard Assessment (OEHHA) has adopted safe harbor warnings, which businesses can use to comply with the law. The updates to Proposition 65 regulations implement several changes and, notably, include significant revisions to Proposition 65's "short-form" warnings.

Businesses will have until January 1, 2028 to come into compliance with the revised warning requirements.

Short-Form Warning Background

Short-form warnings were introduced in 2016. As shorter alternatives to the full-length Proposition 65 safe harbor warnings,[1] they did not require businesses to identify the listed chemical. The truncated warnings were intended to accommodate small products with limited labeling space, but because there were no regulatory restrictions limiting their use, they quickly became the preferred method for Proposition 65 warnings.

The widespread use of short-form warnings has been criticized by many stakeholders, who argued that the proliferation of warnings without a listed chemical undermined the intent of the law and hindered consumers' ability to make informed purchases. OEHHA identified similar concerns as the basis in part for the recent amendments; OEHHA noted in the Initial Statement of Reasons that "[w]arnings that are too general can generate confusion and encourage businesses to provide a warning even when none is required, precisely because businesses can do so in such a broad and unrevealing fashion." (ISOR at 24.)

The amended requirements for short-form warnings are intended to address these concerns.

New Short-Form Warning Requirements

As shown in the table below, businesses opting to use the truncated warning will now be required to identify at least one chemical name and adopt some further minimal changes to the warning language.

	Old Short-Form Warnings	New Short-Form Warnings
Exposures to listed carcinogens	"Cancer - www.P65Warnings.ca.gov."	"Cancer risk from exposure to [name of chemical]. See www.P65Warnings.ca.gov." "Can expose you to [name of chemical], a carcinogen. See www.P65Warnings.ca.gov."
Exposures to listed reproductive toxicants	"Reproductive Harm - www.P65Warnings.ca.gov."	"Risk of reproductive harm from exposure to [name of chemical]. See www.P65Warnings.ca.gov." "Can expose you to [name of chemical], a reproductive toxicant. See www.P65Warnings.ca.gov."
Exposures to both listed reproductive toxicants and listed carcinogens	"Cancer and Reproductive Harm - www.P65Warnings.ca.gov."	"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."
Exposures to a chemical that is listed as both a carcinogen and reproductive toxicant	"Cancer and Reproductive Harm - www.P65Warnings.ca.gov."	"Risk of cancer and reproductive harm from exposure to [name of chemical]. See www.P65Warnings.ca.gov." "Can expose you to [name of chemical], a carcinogen and reproductive toxicant. See www.P65Warnings.ca.gov."

Products manufactured and labeled prior to January 1, 2028 are not required to use the new short-form warnings. Retailers who receive notice that a product will have new warning content will also have 60 days to update their online warnings during the transition period.

New Short-Form Warning for Food Warnings

When short-form warnings were introduced in 2016, the regulations did not include a short-form warning option for food products. The amended regulations expressly provide that food products, including dietary supplements, may use short-form warnings. However, short-form warnings for food products must direct consumers to a food-specific webpage. Sample warning language follows:

• Risk of cancer and reproductive harm from exposure to [name of chemical]. See www.P65Warnings.ca.gov/food.

New California-Specific "WARNING" Options

Businesses also may now identify Proposition 65 warnings as California-specific. Historically, Proposition 65 safe-harbor warnings did not include an option to clarify that California-law required the warning for California consumers. Businesses whose products were sold outside of California have long worried that out-of-state consumers who were unfamiliar with Proposition 65 would misinterpret the warning to mean that the product had concentrations of chemicals that caused cancer or reproductive harm. Rather than provide the warning to out-of-state consumers and risk this confusion, many businesses resorted to more complicated and costly options, including using two versions of packaging: one for products sold into California and another for all other sales.

During rulemaking for the recent amendments, stakeholders requested the addition of California-specific signal words to allow a business selling products on the internet, for example, to target the warning to California consumers and make clear the warning is given pursuant to California law.

Heeding stakeholder suggestions and concerns, the amended regulations now permit businesses to include reference to California. Examples of the new options are below:

• ⚠️CA WARNING: "Cancer risk from exposure to [name of chemical]. See www.P65Warnings.ca.gov."
• ⚠️CALIFORNIA WARNING: "Cancer risk from exposure to [name of chemical]. See www.P65Warnings.ca.gov."

Alternative Warnings for Passenger or Off-Highway Motor Vehicle Parts and Recreational Marine Vessel Parts

The updated regulations also establish alternative safe-harbor language for exposures associated with the purchase, handling, or installation of a passenger or off-highway motor vehicle part or recreational marine vessel parts. However, the alternative language is not required to enjoy the regulatory safe harbor; warnings for these exposures can continue to employ the standard language.

For passenger or off-highway motor vehicle parts, the alternative safe-harbor language is:

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 www.P65Warnings.ca.gov/motor-vehicle-parts.

For recreational marine vessel parts, the alternative safe harbor language is:

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.

Businesses May Continue to Use Alternative Warning Methods

Proposition 65 does not require the use of OEHHA's safe-harbor warnings; it only requires "clear and reasonable warnings" prior to exposing consumers or employees to a Proposition 65 chemical. Businesses can and do use other methods of warnings, though the safe harbor language remains the most popular form, as it is the only assured way to avoid enforcement.

MoFo's team of environmental and products attorneys regularly advises clients on compliance with Proposition 65. Our attorneys are available to assist and advise businesses on their responsibilities under Proposition 65 and other product-disclosure laws.

[1] Sample full-length safe-harbor warning language follows:

WARNING: This product can expose you to chemicals including [name of one or more chemicals], which is [are] known to the State of California to cause cancer and birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov.

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