Recently, the Office of Environmental Health Hazard Assessment (“OEHHA”) in California finalized revisions to the regulations implementing Prop 65 – the California law that requires business to provide a “clear and reasonable warning” to consumers on products that contain any chemicals listed by California as causing cancer or reproductive harm.

Based on a determination by OEHHA that the existing warning language lacks the specificity needed to ensure that the public receives useful information about potential exposures, the regulations have been revised to require additional specificity and direction, including

  1. a clear statement that a person “can be exposed” to a listed chemical,
  2. the names of one or more listed chemicals that are the subject of the warning,
  3. a link to a website maintained by OEHHA containing supplemental information, and
  4. information about the source of the exposure for environmental warnings.

According to OEHHA, these new regulations would further the “right-to-know” purposes of the statute and provide more specificity for the content of safe harbor warnings for a variety of specific kinds of exposures. As a result, as of August 2018, it will no longer be sufficient for businesses to provide a generic warning such as “This product contains chemicals known to the state of California to cause cancer, or birth defects or other reproductive harm.” Instead, to be presumptively determined as “clear and reasonable,” the warning would need to be worded as follows:

Warning Sign 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 or birth defects or other reproductive harm]. For more information go to www.P65Warnings.ca.gov.

Navigating compliance with Prop 65 is already a thorn in the side of businesses selling into California, and these additional, more detailed labeling requirements promise to bring additional headache as well as attention from the overactive Prop 65 litigation bar. The revisions will take effect on August 30, 2018, which provides less than two years for companies to develop a plan for updating warnings to address these new requirements.

A copy of the revised regulations is available here.  For questions about the revised labeling requirements or Prop 65 compliance more generally, contact Angela Levin, Doug Henderson, or Buck Dixon.