California regulators are expected to require new updates to Proposition 65 warning labels in 2024, significantly changing how it will read because a chemical name also must be listed.
The changes could offer a mixed-bag of results for businesses operating under the controversial lawsuit-generating statute.
The biggest change is going to be seen on the so-called Prop 65 "short-form warning," said Anne Marie Ellis, an attorney with the firm of Buchalter, who chairs the firm’s California Products Liability Practice Group and its Chemical Law and Prop. 65 Industry Group, in comments in an interview with the Northern California Record.
Ellis noted that in recent years, the California Office of Environmental Health Hazard Assessment (OEHHA) had developed a short-form Prop 65 warning that did not require businesses to put the name of a chemical, but they did require a chemical name in the long-form or standard warning.
“Once these are passed and the rulemaking process is completed, probably by next year, businesses will have a two-year period to comply," Ellis said. “I don't think there's a huge risk at this point to change anything before everything is final – but once they do become final, businesses need to think about their use of the Prop 65 short-form warning, and if they’re going to continue to use that, and if so, what chemical they’re going to warn for.”
It will be a significant change for any business that is using the short-form warning as a cure-all, Ellis added.
“There’s an emphasis that the short-form warning needs to be conspicuous,” Ellis said. “And for consumers, having the chemical listed will make it more clear, eliminate questions about the product; customers will be more informed.”
Ellis noted that another big change for Prop 65 is that OEHHA is going to allow the warning to say either CA warning or California warning, for either the short-form or long-form warning.
“Which I think is very good for businesses, because there's a lot of pressure because people don't want to put warnings on products that are going to other states, Ellis said. “The reality of the supply chain is that it's very hard to just segregate and label products for California, so this will at least give businesses some context to the warning.”
For consumers, having the California signal word with the Prop 65 label also will provide a more specific frame of reference.
“It just allows people to understand that this product is not necessarily toxic,” Ellis said. “It's just that California requires this warning in certain circumstances.”
Proposition 65 – The Safe Drinking Water and Toxic Enforcement Act – was passed in 1986 and since that time the list of chemical names has grown to nearly 1,000.
According to the OEHHA website, “Businesses with less than 10 employees and government agencies are exempt from Proposition 65’s warning requirements and prohibition on discharges into drinking water sources.”
“Compliance is going to continue to get more complicated, and the state obviously takes it seriously,” Ellis said. “There's a lot of noticing parties out there.”
Industry advocates claim that the law has been weaponized.
“Even businesses that previously thought they were potentially exempt because they didn't expect their product to end up in California; they're seeing notices, and so the reach is wide for Prop 65.” Ellis said.