Six Things You Need to Know About Proposition 65 Over-Labeling

Six Things You Need to Know About Proposition 65 Over-Labeling

When new labeling requirements for the California Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) came into effect in 2018, companies were required to change how in-scope products were labeled. To accommodate small packages, the Office of Environmental Health Hazard Assessment (OEHHA) provided a short-form labeling option, which is more general and does not specify which substances are present over safe harbor levels.

Some companies chose to use the short-form label on all products, with the expectation that they would de-label or switch to a long-form label once the substances contained in the products could be substantiated. Now that a fair adjustment period has been provided, a company’s ability to substantiate the use of a short-form label may come under scrutiny.

What do companies need to know about over labeling? Here are six things to keep in mind:

  1. The intended use case for a short-form label.  

Though there were no published package size restrictions, the original intent of the short-form warning labels was to provide an option for small packages with limited label space. The OEHHA may consider action against companies that use the short-form warning when there is label space for the long-form warning.

  1. Litigation hasn’t come yet — but it’s expected in 2019.

As of right now, no one has been fined for over-labeling. In 2018, the general sentiment was that over-labeling would not be litigated while industry settled around the new requirements. In 2019, this is expected to change. Companies have had more time to collect documentation and implement the appropriate labels, and California officials may begin to seek action this year.

  1. Many companies are actively de-labeling their products.

Some companies initially opted to use the short-form label on everything, or on items with highly-enforced substances, as they collected proper documentation and the industry adjusted to the new requirements. As these third-party declarations are collected, many companies are selectively de-labeling products when the warning is not substantiated.

Learn more about Proposition 65 and your company’s requirements in our whitepaper, Proposition 65: Understanding the Safe Drinking Water & Toxic Enforcement Act.


  1. Changes to prevent over-labeling could be coming.

The OEHHA has said they are monitoring the use of short-form warnings on packages to determine whether restrictions are needed. If so, proposals for amendments may take place sometime in 2019.

  1. The OEHHA will be requesting information on products with a short-form label.

Under Title 27, Cal. Code of Regs., section 25205(b), the OEHHA can request information about products with the short-form label, including the product manufacturer’s contact information, the label provider’s contact information, the names of listed chemicals for which the warning is being provided, and chemical location(s) and concentration.

Companies that receive inquiry letters have 90 days to respond with the requested information.

  1. The short- and long-form labels got a new look in 2018.

Companies should be aware of exactly how the short- and long-form labels should both look, and what content they should contain. Misinformation surrounding the labels has been published online, and as a result, some companies are not using proper labels. Companies should talk to a trusted expert or seek information from the official OEHHA website.

Companies must be able to substantiate their use of short-form labels. Assent’s Proposition 65 solution allows companies to streamline the data collection process and report on substances over safe harbor levels.

To learn more about Assent’s supply chain data management solution, email