On September 2, 2016, California’s Office of Environmental Health Hazard Assessment (OEHHA) finalized its rule amending Article 6 of the regulations implementing Proposition 65 (i.e., California’s Safe Drinking Water and Toxic Environment Act of 1986).  As a result of the new regulation, tobacco and electronic cigarette manufacturers may be required to update their Proposition 65 warnings.

Proposition 65 requires consumer products containing chemicals identified by the state as causing cancer or reproductive toxicity to come with a clear and reasonable warning.  Manufacturers that omit a warning label for consumer products that contain listed chemicals may be subject to lawsuits from the state of California, or from private citizens on behalf of California.

The new revisions alter the “safe harbor” provisions that prescribe the text and format for providing a warning that is deemed “clear and reasonable.”  Importantly, the new “safe harbor” warning regulations will require the specific identification of at least one chemical for which a warning is required but will also allow for abbreviated on-product warnings for consumer goods.

For example, when the product is known to cause exposure to a substance listed as both a carcinogen and a reproductive toxicant: “WARNING: 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 and birth defects or other reproductive harm. For more information, go to www.P65Warnings.ca.gov.” A warning symbol is also required to precede the warning (which must be placed to the left of the text of the warning, in a size no smaller than the height of the word “WARNING”.

The new regulations will also allow for abbreviated “on-product” warnings that could potentially relieve a manufacturer from the chemical disclosure requirement.

Products containing chemicals listed by the state of California as known to cause cancer or reproductive toxicity must contain the updated warning label by August 28, 2018.  In the interim, both the old and the new safe harbor warnings may be used.