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California's Office of Environmental Health Hazard Assessment (OEHHA) has proposed a series of amendments to the state's Proposition 65 regulations that would make minor updates to how chemical exposure warnings are communicated to consumers.
While the planned changes fall short of more substantive regulatory overhauls OEHHA has pursued in recent years, the draft amendments would expressly allow QR codes as a warning method, clarify warning requirements for online sales and create new warning options for parts used in off-road vehicles and equipment.
The package, published on 22 July, also floats other amendments addressing short-form warnings, retailer responsibilities, committee procedures and other minor technical provisions of the regulations.
The proposed changes would modify regulations implementing California's chemicals right-to-know scheme, which for decades has required businesses to provide California consumers with warnings about exposures to roughly 900 listed substances above ‘safe harbour’ levels.
Under the law, private citizens and organisations may pursue enforcement actions against companies that fail to provide those warnings.
The agency will discuss the draft amendments during a public workshop on 30 July, ahead of a 7 September comment deadline.
QR code warnings
Included in the proposal is an amendment that would expressly allow QR codes as a Prop 65 warning method.
As drafted, the amendment would allow businesses to use QR codes on product labels, shelf tags and signs that direct consumers to a webpage containing compliant warning information.
The proposal would also require language accompanying the QR code stating: "Proposition 65 Warning for [name of one or more chemicals]. For more information, scan the QR code".
Ronie Schmelz, a partner at K&L Gates, said she "can't imagine why industry wouldn't welcome this" as a way to share warning information with consumers efficiently, but said additional clarification may be needed regarding whether a QR code could satisfy the requirement on its own or if businesses would also need to include language directing consumers to additional Prop 65 information.
Dennis Raglin, a shareholder at Carlton Fields, said some companies already use QR codes under existing Prop 65 regulations governing electronic warning methods, and that OEHHA likely contemplated those QR codes when drafting these provisions.
However, the proposed amendment would require businesses to name a specific chemical alongside the code, he noted.
Raglin compared the QR proposal to OEHHA's 2024 overhaul of its Prop 65 short-form warning, which modified the state’s regulations to require businesses to identify at least one specific chemical beginning in 2028. He said both changes reflect a broader effort by the agency to move away from warning formats that do not identify chemicals by name.
"This proposed change to the QR code regulation simply continues OEHHA's quest to ensure a consumer sees immediately there is a chemical in the product," Raglin said. "It fits OEHHA's pattern of neutering any warning method that does not include the name of chemicals."
Other draft amendments
OEHHA has also proposed clarifications on how businesses must comply with Prop 65's online disclosure requirements.
As drafted, the amendments would require companies to provide compliant warning content before an online purchase is completed and to ensure that a warning appears on the product itself.
In addition, OEHHA proposed a new warning option for parts used in off-road vehicles and construction, mining, agricultural and forestry equipment.
As proposed, this would allow businesses to use tailored warning language stating that handling off-road vehicle or equipment parts can expose individuals to chemicals such as lead and phthalates, which can cause cancer and reproductive harm. The proposal would also create additional compliance options, including the use of specified point-of-sale signs at retail locations selling covered parts.
Other draft amendments included in the proposal would:
- clarify that short-form warnings may identify one or more chemicals for which a warning is being provided, rather than a single chemical;
- clarify that chemicals extracted or concentrated from sources such as plants could, for purposes of Prop 65's food-related 'naturally occurring' exemption, constitute the result of human activity and no longer qualify for the exemption;
- simplify provisions governing when retailers become responsible for providing warnings;
- change the agency’s Science Advisory Board (SAB) committee voting requirements from a majority of appointed members to a majority of members present at a vote; and
- make minor updates to citations, cross-references and other technical provisions.