California Expands Proposition 65 Warning Language for Exposure to Cannabis Smoke and Delta-9 THC
By Andrea Golan
Aug 22, 2022
In new regulations adopted on August 4, 2022, California’s Office of Environmental Health Hazard Assessment (OEHHA) expanded upon the state’s Proposition 65 warning requirements for products and places of business that can expose individuals to cannabis smoke and delta-9 THC. Read this VS Insights article for additional information about Prop 65 for cannabis and hemp products.
The new regulations include new non-mandatory warning language for products that can expose consumers to cannabis smoke or delta-9-THC via inhalation, ingestion, or dermal application, and for environmental exposures to cannabis smoke and delta-9-THC at businesses where cannabis smoking, vaping, or dabbing occurs. Keep in mind that exposure to smoke and delta-9 THC from hemp products are also subject to Prop 65.
While the new warning language is not mandatory (businesses can give any warning they feel is clear and reasonable as required by OEHHA), using the warning language does provide “safe harbor protection.” This means businesses that use the safe harbor warnings are deemed compliant with the law’s requirement for clear and reasonable warnings. If a company uses warning methods or content that differs from the safe harbor warning language, and the business is sued for a violation of Prop 65, the business would not be able to claim safe harbor protection.
Safe Harbor Language and Effective Dates
The new regulations are effective October 1, 2022, but include a one-year phase-in period and an unlimited sell-through provision for products manufactured before October 1, 2023 with the existing safe harbor warnings. For products manufactured on or after October 1, 2023, the new safe harbor language must be used to enjoy safe harbor protection.
Warning Language for a Cannabis Product Intended to be Smoked:
WARNING: Smoking cannabis increases your cancer risk and during pregnancy exposes your child to delta-9-THC and other chemicals that can affect your child’s birthweight, behavior, and learning ability. For more information go to www.P65Warnings.ca.gov/cannabis.
(Citation: 27 CCR § 25607.39)
Warning Language for a Cannabis Product with Delta-9 THC Intended to be Ingested:
WARNING: Consuming this product during pregnancy exposes your child to delta-9-THC, which can affect your child’s behavior and learning ability. For more information go to www.P65Warnings.ca.gov/cannabis.
Note, if the product also contains other chemicals on the Prop 65 list known to cause cancer, this warning will need to be modified.
(Citation: 27 CCR § 25607.41)
Warning Language for a Cannabis Product Intended to be Vaped or Dabbed:
WARNING: Vaping or dabbing this product during pregnancy exposes your child to delta-9- THC, which can affect your child’s behavior and learning ability. For more information go to www.P65Warnings.ca.gov/cannabis.
Note, if the product also contains other chemicals on the Prop 65 list known to cause cancer, this warning will need to be modified.
(Citation: 27 CCR § 25607.43)
Warning Language for a Cannabis Product Intended for Dermal Application:
WARNING: Using this product during pregnancy exposes your child to delta-9-THC, which can affect your child’s behavior and learning ability. For more information go to www.P65Warnings.ca.gov/cannabis.
(Citation: 27 CCR § 25607.45)
Warning Language for Places of Environmental Exposures to Cannabis Smoke or Delta-9 THC:
The following warning must be provided on an 8 1/2 by 11-inch sign printed in no smaller than 22-point type and enclosed in a box posted both at the entrance to and within the area in which the exposure occurs. The warnings must be readable and conspicuous to customers.
In an area where cannabis smoking occurs, or both cannabis smoke, and vaping or dabbing occur:
WARNING: Breathing the air in this area exposes you to cannabis smoke, which increases your cancer risk and, during pregnancy, exposes your child to delta-9-THC and other chemicals that can affect your child’s birthweight, behavior, and learning ability. For more information go to www.P65Warnings.ca.gov/cannabis.
In an area where delta-9 THC vaping or dabbing occurs, but cannabis smoking does not, and where consumers can be exposed to one or more listed carcinogens in ambient air:
WARNING: Breathing the air in this area exposes you to carcinogens including [name one or more listed carcinogens] and during pregnancy exposes your child to delta-9-THC, which can affect your child’s behavior and learning ability. For more information go to www.P65Warnings.ca.gov/cannabis.
(Citation: 27 CCR § 25607.45)
The regulatory text and rulemaking materials are available on the OEHHA website. Prop 65 is complex and makes it difficult for cannabis businesses to navigate regulatory compliance successfully. If not complied with, this could open your business to exposure.
Helping the cannabis industry maintain compliant operations is a cornerstone of Vicente Sederberg’s services. Please contact us if you need assistance.