Proposed Changes to Prop 65 ‘Short-Form’ Warning Option: What Cannabis and Hemp Operators Need to Know
By Andrea Golan
Mar 17, 2021
A Recap of Proposition 65 Warnings for Products That Contain Δ9 THC or Expose Users to Cannabis Smoke
In April of 2020 we discussed Proposition 65 and the new “Prop 65” warning requirements for products that contain delta-9 tetrahydrocannabinol (Δ9 THC) and/or expose users to cannabis smoke. As a reminder, in January 2020, California’s Office of Environmental Health Hazard Assessment (OEHHA) added Δ9 THC and marijuana (cannabis) smoke to the Prop 65 list of chemicals known as reproductive toxins. (Cannabis smoke has been listed as a Prop 65 carcinogen since 2009.)
This means businesses subject to Prop 65 that manufacture, distribute, or sell any cannabis product, including hemp-derived products that contain trace amounts of Δ9 THC, must provide a “clear and reasonable” warning notifying California consumers that the products contain chemicals known to the State of California to cause cancer or reproductive harm.
Breaking Down the Current Warning Requirements for Cannabis Products
A business that provides a “clear and reasonable” warning prior to exposure to the listed chemical is afforded “safe harbor” protection from alleged Prop 65 violations and enforcement. A warning is “clear and reasonable” when it is prominently displayed in such a manner that it can be seen, read, and understood by the consumer prior to exposure. The regulations provide specific warning language and methods that are considered “clear and reasonable” for providing the warning. A business may use any other warning method or content that is “clear and reasonable,” but to be afforded “safe harbor” the warnings must incorporate the statute’s specified content and warning methods. These requirements can be found in 27 CCR § 25600; 27 CCR § 25600 et seq; and 27 CCR § 25601(c).
For now, businesses can satisfy the “clear and reasonable” safe harbor with either a long form warning that lists at least one of the chemicals on the Prop 65 list or one of three approved short form warnings. Depending on whether the chemical(s) contained in the product cause cancer, reproductive harm, or both, the short form warnings are as follows:
WARNING: Cancer – www.P65Warnings.ca.gov
WARNING: Reproductive Harm – www.P65Warnings.ca.gov
WARNING: Cancer and Reproductive Harm – www.P65Warnings.ca.gov
OEHHA originally intended the short form warning only to be used for small packages and containers with insufficient space for the longer warning, but, according to OEHHA, businesses are using the short form regardless of package size, and are using the warning even when they don’t know whether or not their product contains a chemical on the Prop 65 list.
Proposed Prop 65 Warning Requirement Changes
On January 8, 2021, OEHHA proposed significant changes to its short form warning requirements. OEHHA’s proposed amendments would modify the existing regulations as follows:
Require that the name of at least one chemical be included in the short-form warning.
Allow the use of short form warnings only when a product with a total surface area available for consumer information is 5 square inches or less and the package shape or size cannot accommodate the full-length warning.
Prohibit the use of short form warnings for websites.
Clarify how short form warnings can be used for food products.
Once the regulations become effective, businesses will have a one-year grace period to comply. Any product labeled with the ‘old’ safe harbor warning that is manufactured before the expiration of the grace period will be considered “clear and reasonable” if it complies with the prior safe harbor warning requirements.
The public comment period is open through March 29, 2021. Submit your comments on the proposed amendments here.
We strongly advise reviewing the proposed amendments to assess whether your business will need to make future changes. If you’re not sure whether you need to comply with Prop 65 or need to ensure your business is compliant, please contact Vicente Sederberg’s regulatory compliance team for guidance.