California Proposes Prop 65 Safe Harbor Warnings for Glyphosate

The California Office of Environmental Health Hazard Assessment (OEHHA) has proposed a Proposition 65 safe harbor warning for exposure to glyphosate from consumer products. 

By way of background, Proposition 65 is a right-to-know law that requires individuals to receive a clear and reasonable warning before being exposed to certain chemicals that California deems to be carcinogens or reproductive toxicants. In 2015, the International Agency for Research on Cancer (IARC) classified glyphosate as “probably carcinogenic” to humans. Based on IARC’s classification, the California Office of Environmental Health Hazard Assessment (OEHHA) listed glyphosate as a chemical known to the state of California to cause cancer on July 7, 2017.

However, the Proposition 65 glyphosate warning requirement has been in limbo since a 2018 preliminary injunction in the National Association of Wheat Growers v. Zeise case in which the California Chamber of Commerce had successfully challenged Proposition 65 warnings for glyphosate based on First Amendment grounds. The court found that the safe harbor warning language stating that glyphosate is “known to the state of California to cause cancer,” could mislead the average consumer, as “[i]t is inherently misleading for a warning to state that a chemical is known to the state of California to cause cancer based on the finding of one organization [International Agency for Research on Cancer (IARC)] . . . when apparently all other regulatory and governmental bodies have found the opposite.” (For more information on the case, see Court Bars CA Prop 65 Glyphosate Warning Requirement.)

The proposed rule, issued on July 23, 2021, would allow the warning for glyphosate in consumer products to state “ATTENTION” or “NOTICE” or “CALIFORNIA PROPOSITION 65 WARNING,” followed by the statement:
Using this product can expose you to glyphosate. The International Agency for Research on Cancer classified glyphosate as probably carcinogenic to humans. Other authorities, including USEPA, have determined that glyphosate is unlikely to cause cancer, or that the evidence is inconclusive. A wide variety of factors affect your personal cancer risk, including the level and duration of exposure to the chemical. For more information, including ways to reduce your exposure, go to www.P65Warnings.ca.gov/glyphosate.

This warning would be included in new Sections 25607.48 and 25607.49 to the Title 27, Article 6 Clear and Reasonable Warnings regulations. Comment are being accepted until September 7, 2021.