The California Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) requires companies selling products in the state to provide clear and reasonable warnings on their products, if those products contain substances believed to cause cancer or reproductive harm. Since 2018, businesses have had the option of using long-form or short-form warnings, with many opting for the more concise option. Recent proposed changes to the act will put severe restrictions on short-form warnings, potentially necessitating a mass migration toward long-form labels.
Long-Form Vs. Short-Form Warnings
Article 6 of Proposition 65 requires companies with 10 or more employees to provide clear and reasonable warnings to individuals before knowingly and intentionally exposing them to a chemical listed as known to cause cancer or reproductive harm. The state maintains such a list, now numbering nearly 1,000 substances.
A warning is deemed “clear” if it communicates the chemical in question is known to be harmful, and “reasonable” when it is positioned to be seen prior to exposure. To accomplish this, companies were given the two options mentioned above. Long-form warnings specify a substance and health endpoint, while short-form ones include only health endpoints prior to sale.
It was initially believed that short-form warnings would be seldom used, perhaps only in cases where the product size limitations demanded it. The California Office of Environmental Health Hazard Assessment (OEHHA) — the enforcement body behind Proposition 65— has found that many companies are using the short-form label in ways not intended. To remedy this, they proposed changes that will restrict when a short-form label may be used on products.
The restrictions are as follows:
- The surface area of the label available for consumer information must be five square inches or less.
- The package shape or size cannot accommodate the full-length warning.
- The entire warning must be printed using the largest type size used for other consumer information on the product, no smaller than six-point font.
Products sold on the internet or through catalogs are ineligible for short-form warnings, and some changes to how the warnings are used for food products have been proposed.
Changes to the warnings themselves have also been suggested, such as requiring at least one chemical be included in the short-form warning. The recommendations from OEHHA are currently open for public comments through March 8, 2021.
What Can Companies Do to Prepare
The initial draft of the warning requirements in 2016 carried more restrictions on label use than was ultimately put into force in 2018. As such, the proposed changes have been long awaited and appear unlikely to be rescinded. Companies using short-form labels in ways that are inconsistent with those prescribed by OEHHA should begin migrating their warnings to the longer form.
The substance requirement will require supply chain data, and companies should begin engaging their suppliers now, if they have not already done so.
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