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The following comments are from Sedina L. Banks and Sherry E. Jackman, partners in Greenberg Glusker’s Environmental Group, where they specialize in environmental compliance and litigation.
As we welcome the new year, January 1, 2025, significant changes to California’s Proposition 65 “clear and reasonable warning” regulations go into effect. These changes affect how companies label their products to comply with the warning requirements of Prop 65, including the so-called “brief” warning requirements.
Background of the Drinking Water Safety and Hazardous Substances Control Act
Proposition 65, officially called the Safe Drinking Water and Toxic Control Act of 1986, requires businesses with 10 or more employees to provide “clear and reasonable” warnings before exposing individuals in California to listed chemicals that can cause cancer and birth defects. We ask you to provide it. /Has reproductive harm or both. This list contains approximately 1,000 chemicals, ranging from naturally occurring to man-made chemicals, and continues to grow with new chemicals added regularly.
In 2018, the Office of Environmental Health Hazard Assessment (OEHHA), California’s primary regulatory agency responsible for enforcing Proposition 65, adopted regulations providing specific “safe harbor” warning language. This allows companies to use “shorthand.” Warnings for non-food products that do not require identification of the specific chemical associated with each “endpoint” hazard (i.e., cancer and/or birth defects/reproductive hazard). For this reason, many companies have relied on short-form warnings instead of “long-form” warnings that must identify one or more specific chemicals.
OEHHA initially did not allow brief warnings on foods. Instead, foods were required to use specially tailored long-form warnings that must identify the specific chemicals associated with each endpoint harm.
Overview of Proposition 65
The new Prop 65’s safe harbor warning requirements, including those affecting food, differ significantly from previous requirements.
Chemical identification required: All alerts, including short-form alerts, must identify at least one chemical per endpoint impact.
According to the new amendments, brief warnings on food packaging must include:
- “The phrasewarning,” “CA warning,” or “california warning” is displayed in capital letters and boldface.
- Identify at least one detected chemical along with the relevant endpoint (e.g., whether the chemical is a registered carcinogen, a reproductive toxin, or both).
- Exhibit 65 Food warning websites.
OEHHA said in its final rationale supporting the new requirements that the change “will ensure that abbreviated warnings provide more information to consumers by adding at least one chemical name and providing additional warning options for businesses to choose from.” Yes. In particular, safe harbor warnings for food already required the identification of specific chemicals for each endpoint harm. Therefore, the new requirements for non-food products will make warnings more consistent across all product types.
· Food warning: Custom abbreviated warnings are now available for foods.
· Internet Warning: Internet warning requirements and the responsibilities of retail sellers for posting Internet warnings are now clear.
· Long compliance transition period: Companies can continue to use previously permitted warning language for products manufactured and labeled before January 1, 2028. This three-year compliance transition period allows for an unlimited period of sales for products manufactured before January 1, 2028, and labeled with the existing short-form warning. The three-year transition period has expired. The regulated community supported a longer transition period from the shorter period originally proposed by OEHHA.
There are also additional requirements for non-food products, such as prefix warning options and new custom safe harbor warnings for passenger or off-road vehicle parts and recreational marine vessel parts.
These changes will be difficult and expensive for many businesses to implement, but overall, this law is good news for businesses that manufacture, distribute, and sell food. The new requirements now allow for the display of short-form warnings specifically tailored to food products.
· The ability to indicate that Prop 65 warnings are a California-specific requirement will appeal to the regulated community and we often receive inquiries from non-California consumers who are unfamiliar with Prop 65 in California.
· Food warnings may optionally use short-form warning language. For example, for exposure to lead and lead compounds (chemicals commonly found in foods) that have been shown to cause cancer and reproductive harm, the warning may include one of the following:
- Cancer risk and reproductive harm from exposure to lead and lead compounds. See www.P65 Warnings.ca.gov/food.
- May expose you to lead and lead compounds, which are carcinogens and reproductive toxicants. See www.P65 Warnings.ca.gov/food.
- Food warnings must still accompany the carton and be distinct from other surrounding information.
- Companies can continue to use existing long-form warnings for food products. This means that companies can choose whether to apply new abbreviated warnings to their products at their discretion, without a mandatory compliance period.
The overall impact of these new requirements will depend on the type of product being labeled. Brief warnings for non-food products must now, for the first time, specify the chemical for each type of hazard. This added specificity is likely to complicate and increase compliance costs for companies. On the other hand, the new regulations provide more options for Prop 65 warnings for food. Many food manufacturers, distributors and retailers will likely prefer the new safe harbor shortened warnings to save space and simplify warnings.
Regardless of the caveat used, companies must ensure they are complying with Prop 65 requirements. Non-compliance fines can be very high. Each violation (including “violations” generally considered California sales or “exposures”) can result in up to $2,500 per day, plus the plaintiff’s attorneys’ fees and costs.
As the new year begins, don’t overlook these important changes. If compliance is costly, compare that to the cost of non-compliance.
