Resource Article: Proposition 65 – Upcoming Transition Away from Short-Form Warning Requirements
Businesses operating in California often ask when exposure to a chemical trigger a warning obligation under Proposition 65. The answer is that a “clear and reasonable” warning is required when a business “knowingly and intentionally” exposes individuals to a listed chemical above regulatory thresholds. These thresholds are commonly referred to as “safe harbor levels.” Proposition 65 requires businesses to provide a warning if exposures exceed certain levels and evaluate exposure based on foreseeable use of a product.
In practice, many businesses today elect to provide what are known as “short form” warnings prior to conducting testing or in the absence of clear thresholds. The short-form warning is advantageous because it does not require businesses to list specific chemicals that consumers may be exposed to. Eventually, however, businesses will need to list relevant chemicals that consumers may encounter. The law provides that: “A short-form warning on a product manufactured and labeled prior to January 1, 2028, may use [the short-form warning]”. As a practical matter, this means that testing products will have greater importance, and businesses will need to point to specific chemicals within their products and/or environments.
Ultimately, Proposition 65 compliance requires a fact-specific analysis of both the chemical at issue and the nature of consumer exposure. Businesses should consider working with qualified experts and legal counsel to evaluate exposure levels and implement an appropriate compliance strategy. If you need legal guidance for Proposition 65, please contact us at info@mnklawyers.com
This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between MNK Law and any recipient. Recipients should consult with counsel before taking any action based on the information contained within this material.