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New Proposed Proposition 65 Warning
Requirements: What You Need To Know
LEGAL ALERT
Key Contributors
Melissa A. Jones
916.319.4649
Bao M. Vu
916.319.4658
Related Practices
Environmental & Natural
Resources Law
Prop 65
Jan 14, 2015
On January 12, 2015, California’s Office of Environmental Health
and Hazard Assessment (“OEHHA”) released the long anticipated
Notice of Proposed Rulemaking that proposes changes to the
warning requirements under Proposition 65’s (“Prop 65”)
implementing regulations. The proposed regulations would
establish a new mandatory regulation addressing the responsibility
of product manufacturers and others in the chain of distribution
and provide guidance on the methods and content for safe harbor
warnings, including the statement that a person “can be exposed” to
a listed chemical. Significantly, the proposed amendments include
an update to the current safe harbor warning and require specific
identification of certain chemicals on warning labels.
Background
OEHHA originally published pre-regulatory proposed changes last
spring and subsequently held a workshop and accepted comments
from the public. The proposed regulatory amendments issued this
week reflect some modifications to the original proposal, but
continue to contain significant changes that will impact companies
selling products in the state of California, including manufacturers,
distributors, and retailers. OEHHA has stated that it is proposing
these changes to address concerns that the current safe harbor Prop
65 warnings lack the necessary specificity to ensure that the public
receives useful information about potential exposures.
Summary of the Proposed Changes
Under the current regulations, warning language stating that the
“product contains a chemical known to the State of California to
cause” cancer, birth defects, and/or other reproductive harm is
permitted. The proposed regulations would require that Prop 65
warnings contain the following information:
1. a symbol consisting of a black exclamation point in a yellow
equilateral triangle with a bold black outline (though the symbol
1. a symbol consisting of a black exclamation point in a yellow
equilateral triangle with a bold black outline (though the symbol
may be printed in black and white if other signage or labeling for
the product is not in color);
2. the word “WARNING” in all capital letters and bold print;
3. the language: ÍThis product can expose you to a chemical…Î ;
4. specific warning language based upon the potential physiological
effect of exposure (e.g., cause cancer and/or birth defects or other
reproductive harm);
5. specific identification of certain chemicals, as discussed below;
and
6. reference to an OEHHA Prop 65 website.
As noted above, the proposed regulations also contemplate that
warnings specifically identify the following chemicals, to the extent
exposure to such a chemical requires a warning under Prop 65:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
acrylamide
arsenic
benzene
cadmium
carbon monoxide
chlorinated tris
formaldehyde
hexavalent chromium
lead
mercury
methylene chloride
phthalates
This represents a significant departure from the current
regulations, which do not require that a company specifically
identify in the Prop 65 warning which chemicals are present in the
product. In selecting these chemicals for identification, OEHHA
noted that it considered the following factors:
widespread prevalence of the listed chemical in products;
potential for significant exposure to the listed chemical through
human interactions with products;
recent Prop 65 enforcement activity;
recognizability of the chemical name among the general
public; and
the availability of resources to the public about toxicity, doses of
concern, and ways to prevent or reduce exposure.
Proposed Rule Changes Specific to Food Products
The proposed changes would also apply to food products, with two
exceptions. First, the warning symbol would not be required for
The proposed changes would also apply to food products, with two
exceptions. First, the warning symbol would not be required for
food products. Second, the warning language is modified for food
products to explain that exposures occur through consumption of a
food product (“[c]onsuming this product can expose you to”). OEHHA
confirmed that companies may include additional contextual
information to supplement the Prop 65 warning, as long as it does
not contradict, dilute, or diminish the warning. OEHHA noted that it
encourages companies to include in the warning information about
ways to reduce exposure.
Additionally, the proposed regulations contain specific guidelines
for other products and exposure areas, such as prescription drugs,
dental products, raw wood, furniture products, diesel engines,
passenger vehicles, parking facilities, amusement parks, petroleum
products, service stations, vehicle repair stations, and designated
smoking areas.
Next Steps
As proposed, the amendments would not take effect for two years to
provide manufacturers, distributors, and retailers a “sell through”
period. Nonetheless, companies should stay apprised of the
developments with regard to the potential changes to the Prop 65
warnings, since some of the proposed changes (especially the
proposal to require that the warnings specifically identify certain
chemicals) may require a fair amount of planning to ensure
compliance.
A public hearing on the proposed changes will be held on March 25,
2015 at 10:00 a.m. at the California Environmental Protection
Agency Building, 1001 I Street, 2nd Floor, Sacramento, CA. The
comment period for this proposed regulatory action closes on A p r i l
8, 2015. More information can be found at OEHHA’s Prop 65 website.
Authored by Melissa A. Jones and Bao M. Vu at Stoel Rives LLP.
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