Until this year, food companies—often the target of Proposition 65 enforcement actions—have been limited to specific “full-length” language for Prop 65 warnings, without explicit guidance regarding whether short-form warnings could be used as a safe harbor warning for food products and non-alcoholic beverages. Prior to the implementation of amended regulations this year, Prop 65 regulations required the following full-length warnings for food products containing a listed carcinogen or reproductive toxicant:
WARNING: Consuming 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. For more information go to www.P65Warnings.ca.gov/food.
WARNING: Consuming 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 birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov/food.
Similar variations may be used for exposure to both listed carcinogens and reproductive toxicants, and for exposure to chemicals that are listed as both a carcinogen and a reproductive toxicant.[1] Where a warning is being provided for an exposure to a single chemical, the words “chemicals including” may be deleted from the warning. These warnings can still be used for food exposures.
Although these prior warnings are still allowed under the new regulations, effective January 1, 2025, California adopted new guidelines for Prop 65 short-form warnings.[2] Notably for food companies, the new regulations make explicit that short-form warnings may be used to provide safe harbor warnings on food product labels. Since the Office of Environmental Health Hazard Assessment’s (“OEHHA”) 2016 Prop 65 rulemaking—when the OEHHA first adopted a “short-form” warning option for consumer product exposures—OEHHA has received numerous inquiries from businesses seeking clarification as to whether the short-form warning could be used as a safe harbor warning for food products because the tailored warning for food products did not expressly provide for short-form warnings. The new regulations address these inquiries by clarifying that short-form warnings containing newly approved language may be used to provide safe harbor warnings for food products.
Below are examples of allowed short-form warnings for listed carcinogens and reproductive toxicants on food product labels under the new regulations:
WARNING: [or CA WARNING: or CALIFORNIA WARNING:] Cancer risk from exposure to [name of chemical]. See www.P65Warnings.ca.gov/food.
WARNING: [or CA WARNING: or CALIFORNIA WARNING:] Can expose you to [name of chemical], a carcinogen. See www.P65Warnings.ca.gov/food.
WARNING: [or CA WARNING: or CALIFORNIA WARNING:] Risk of reproductive harm from exposure to [name of chemical]. See www.P65Warnings.ca.gov/food.
WARNING: [or CA WARNING: or CALIFORNIA WARNING:] Can expose you to [name of chemical], a reproductive toxicant. See www.P65Warnings.ca.gov/food.
Similar variations may be used for exposure to both listed carcinogens and reproductive toxicants, and for exposure to chemicals that are listed as both a carcinogen and a reproductive toxicant.[3] The full regulatory text, as amended, can be viewed here.
We expect food manufacturers to switch over to the short-form warnings for a variety of reasons, including saving valuable space on labels. Additionally, the full-length warning for food products already required identification of the chemical exposure, so making the switch to the short-form warning (which also requires identification of the chemical) should not present significant difficulty.
FOOTNOTES
[1] See Cal. Code Regs., tit. 27, § 25607.2(a)
[2] Companies that sell consumer products using a Prop 65 short-form warning (or that are considering the use of short-form warnings) should be aware that the new regulations require that short-form warnings identify at least one listed chemical for which the warning is being provided. Although the effective date was January 1, 2025, the regulation preserves the option to use the existing short-form warnings for consumer products without identifying a chemical until December 31, 2027. A full write up regarding the new requirements for short-form warnings can be found here.
[3] See Cal. Code Regs., tit. 27, § 25607.2(b).