Prop 65 Update: New Amendments Clarify Supply Chain Warnings

New amendments effective April 1st under California’s Proposition 65 “Clear and Reasonable Warning” regulations (Prop 65) clarify how entities in the supply chain can satisfy their warning obligations when the ultimate retailer is uncertain. The California Office of Environmental Health Hazard Assessment (OEHHA) now will require that the manufacturer, producer, packager, importer, supplier, or distributor of a product comply with the “Clear and Reasonable Warning” regulations either by providing a warning on the product label or by providing a written notice directly to the authorized agent for the business to which they are selling or transferring the product or to the retail seller, so long as the business to which they are providing the notice is subject to Prop 65.

With the passage of these amendments, OEHHA recognizes commonplace business practices that have developed to provide warnings within the supply chain where products are bought, sold and distributed prior to reaching the ultimate retailer. OEHHA’s formal acceptance of the written notice letters from upstream suppliers and manufacturers to downstream distributors and customers is a positive development for many industry sectors and confirms that OEHHA is responding in a favorable manner to comments from the regulated community.

The new amendments in no way reduce the obligations to provide Prop 65 warnings but simply clarify how intermediate parties in a supply chain can comply with applicable legal requirements. To date, OEHHA has not addressed any compliance date extensions related to COVID-19 considerations so these amendments are in full force and effect.

Many businesses have adopted a compliance strategy of placing warnings on all products and often the  “short-form” warning is selected as the best option. While “short-form” warnings originally were intended for smaller products which could not fit the text of the full warning, OEHHA has allowed the use of the “short-form” on a wider array of products. OEHHA continues to take a second look at the use of “short-form” warnings but any changes would be subject to the California Administrative Procedures Act so notice and the opportunity to comment would allow the regulated community ample time to assess other possible compliance options, if needed.