Much of the recent discussion regarding Prop 65 has been focused on the regulatory changes going into effect in August of 2018. And that makes sense since there will be significant changes to the warnings, responsibility, and labeling obligations on product websites. There is, however, other activity that may result in a more profound change as to which chemicals require Prop 65 warnings. As we have discussed in the past (see prior post here), there has been litigation in California state court addressing the appropriateness of adding the pesticide ingredient Glyphosate to the Prop 65 list. Continue Reading A Federal Court Gets Opportunity to Weigh In on Prop 65 With a Little Help from Some Friends
California’s Safe Drinking Water & Toxic Enforcement Act of 1986 (affectionately known as “Proposition 65”) has long been the subject of discussion, both pro and con. Much of the conversation is on various issues surrounding the enforcement of Proposition 65 (for example, see a prior post here). In March 2017, a California trial court in Monsanto Co. v. Office of Environmental Health Hazard Assessment (“OEHHA”), No. 16-CE CG 00183, addressed a much more basic issue: should a chemical – here Glyphosate, a key ingredient in Monsanto’s Round-Up® product – even be on Prop 65’s list of cancer-causing chemicals? Continue Reading California’s Prop 65: More Form Over Substance
We have had a huge election result, perhaps the most significant in our lifetime, potentially even exceeding what was called the Reagan Revolution. It is critical, particularly for anybody from Washington DC, to have a great deal of modesty and humility in prognosticating the future under the Trump administration even in the CPSC world. We assume, but really do not know, what the attitudes of the new Trump administration and the Republican-led Congress will be in our parochial, but critical, little product safety world.
We can understandably assume that within a year or less there will be a new CPSC Chairman and a new Republican majority on the Commission. We can also assume that this will change the direction and substance of many regulatory initiatives and maybe even some of the approaches to compliance and civil penalties.
Though we may be unsure about the future, I can say confidently that what we badly need from the outgoing Democratic majority and the yet to be defined incoming Republican majority is some perspective, restraint, and Aristotelian moderation. I hope that the current majority commissioners will not take advantage of their present but fleeting power to push through ill-conceived regulatory or compliance and enforcement initiatives. Such actions will be bitterly opposed and this Commission’s reign will end on a sour note and be subject to regulatory and congressional reversal.
On the other hand, all five of the current commissioners swore to uphold the Constitution and the laws of the United States. Those laws absolutely include CPSIA and other governing statutes of the CPSC. So the Commissioners need to, and I am confident that they will, continue to do their jobs.
There are some very important initiatives which will enhance safety and not be politically controversial. For example, I welcome Chairman Kaye’s interest in a comprehensive and interagency review of the lithium ion battery problem. We do not need to have any more spectacular safety problems to recognize that even without hoverboards and cell phones catching on fire, the increasing use and push-the-envelope application of products which use lithium ion batteries is causing lots of problems.
Indeed, the situation with respect to lithium ion batteries is even worse for smaller companies which don’t have vertical integration, don’t design batteries or battery packs, don’t have much control over their vendors, and basically have to take solutions off the shelf. Everybody in the product safety community will benefit from figuring out what combination of standards, practices, and designs we need to protect the public and thousands of businesses.
Nevertheless, the business community and the future leaders of the CPSC need to show some restraint as well. It would be a mistake to take advantage of the present politics to fundamentally reverse the key elements of the Consumer Product Safety Act, to strangle the agency with inadequate funding, or tie the agency up in knots so it cannot adequately function. This is a formula for exponentially increasing an already problematic patchwork of state and local government regulation of consumer products. It would also potentially allow for cheap, unsafe imports to flood our country and undermine significant product safety investments already made by U.S. companies.
This does not mean that nothing should be done or that the statute shouldn’t be revisited in some regards. There are plenty of ways the business community can achieve meaningful regulatory improvements and burden relief that would not cause larger issues.
I do not support crippling the CPSC. No members of industry that I have spoken with support such drastic action either. It will not be in the long term benefit of the business community and it leaves American consumers, our families and friends, less protected.
I’ve been involved in the product safety world for 30-plus years and have seen the political pendulum swing on multiple occasions. One constant is that most reasonable, informed people, whether business executives or consumer advocates, agree that a well-functioning CPSC is a critical part of a vibrant economy for consumer products in this country.
Last month, the California Office of Environmental Health Hazard Assessment (“OEHHA”) adopted new Proposition 65 warning regulations. Much of the discussions regarding these new regulations have centered on the warning requirements that become effective, after an approximately two-year phase-in period, in August 2018.
There were, however, amendments to Prop 65 settlement terms, penalty amounts and attorney’s fees in civil actions filed by private persons that became effective on October 1, 2016. These amendments have “flown under the radar” but actually may be more problematic than the proposed new warnings.
Proposition 65 permits private citizens (known by the plaintiff’s bar as “citizen enforcers”) to initiate enforcement actions, and, when they do, they are entitled to 25% of any penalties assessed by the courts and attorney’s fees. Continue Reading California Prop 65: More Unintended Consequences
In the wake of two tragic amusement park ride accidents in Kansas and Tennessee, and the ongoing political debate in America over gun safety issues, we felt it timely to help answer a question that continues to be asked in the media: does the U.S. Consumer Product Safety Commission (CPSC) have the authority to address the safety of amusement park rides and guns?
Amusement Park Rides. Every time there is a tragedy on a ride at an amusement park, the nation turns its attention and scrutiny on the CPSC as the nation’s safe products regulator. However, and crucially, the CPSC does not have jurisdiction over the safety of “fixed site” amusement park rides. In 1981, the Congress stripped the CPSC of its jurisdiction over these rides through an amendment to the Consumer Product Safety Act (CPSA). As a result, rides that are “permanently fixed to a site” (such as the ones at the Kansas and Tennessee parks) are subject to voluntary standards written by the ASTM F-24 Committee on Amusement Rides and Devices and state and local regulations.
The CPSC does have jurisdiction over “mobile” amusement rides (those transported from location to location). The agency also acts as a clearinghouse for safety information on ride incidents identified by Commission investigators and state and local ride officials. The following 2012 CPSC Directory of State Amusement Ride Safety Officials provides a helpful introductory overview of the CPSC’s activities with respect to amusement park rides and a directly of the relevant state and local officials dedicated to ride safety.
Read our previous post about this jurisdictional issue here.
Gun Safety. Like fixed amusement park rides, firearms and ammunition are excluded from the definition of a “consumer product” in the CPSA. As a result, the CPSC does not regulate the safety of guns, shells and cartridges (the Bureau of Alcohol, Tobacco, and Firearms does).
Note: CPSC Commissioner Marietta Robinson recently issued a thoughtful perspective describing how she believes the CPSC can make guns safer and help bring down the number of accidental incidents involving firearms. According to Robinson, “guns should be defined as the consumer products they are so that we may do our job of protecting the American consumer.”
Despite its lack of jurisdiction to regulate the safety of guns and ammunition at present, the CPSC does have authority to regulate the safety of some products and accessories related to gun use. For example, the CPSC has asserted its jurisdiction over separate firearm trigger locking devices. Additionally, the CPSC has recalled previously gun storage boxes, handgun vaults, and gun holsters, thus all squarely falling within the regulatory authority of the agency. In fact, as recently as 2013, the White House requested the CPSC to “review and enhance as warranted safety standards for gun locks and safes” as a measure to improve gun safety.
Without a further act of Congress, the CPSC’s activities with respect to fixed amusement park rides and gun safety will not likely change.
Last year, we wrote about a growing trend of local jurisdictions regulating children’s products, primarily toys and apparel. One such jurisdiction, Albany County, NY, enacted a far-reaching ordinance, “Local Law J of 2014,” that prohibited the sale of children’s products containing seven chemicals of “high concern” (see previous blog post here). At the time, we questioned the usefulness of this type of local legislation given the existing federal (and often state) product safety regulatory framework. Now, in the face of vocal opposition to the law from industry, which included the filing of a lawsuit in federal court, the Albany County Legislature has amended the law in an attempt to address industry concerns (see Local Law P of 2015). While the amendments are a step in the right direction, many concerns over potential adverse and unintended consequences remain.
[This article originally appeared on Law360.com on June 23, 2015.]
On June 2, 2015, the Suffolk County Legislature became the latest county legislature in New York to pass a “toxic-free toys” act. About a week later, the New York City Council got in on the action and introduced a similar bill. Since the beginning of the year, five county legislatures in New York (Albany, Suffolk, Westchester, Dutchess and Onondaga) and the New York City Council have either passed, or are in the process of considering, laws to supposedly stem the flow of unsafe children’s products onto local store shelves. The actions of these localities raise the fundamental legal and policy question: do local governments, such as county legislatures or town councils, have a legitimate role in regulating consumer products, a role typically reserved for the federal, and in some instances, state governments? Clearly, these local governments believe that they do, as do the consumer and environmental organizations behind the effort. Yet the answer is not as simple as it may seem.
Every so often, frequently in response to sensationalized media reports regarding the prevalence of allegedly unsafe products getting into the hands of children, counties decide to legislate on matters involving consumer product safety, and a trend, similar to the recent one in New York, begins. Unfortunately, these laws introduced and considered by localities tend to be more about politics and headlines than safety and have little effect on actually improving the safety of children’s products. Continue Reading Toy Safety Regulation Should Be Left To The Federal Government
Earlier this year, we wrote about a far-reaching product safety ordinance enacted into law in Albany County, NY (the “County”) entitled “The Toxic Free Toys Act.” At the time, we expressed our concern that numerous issues would arise in the local law’s implementation and enforcement, particularly with respect to those provisions in direct conflict with the federal Consumer Product Safety Improvement Act of 2008. Not surprisingly, in mid-April, a coalition of consumer product associations filed a lawsuit in federal court to challenge the law.
The “Safe to Play Coalition” argued in its Complaint that the Albany County law is pre-empted by both the federal Consumer Product Safety Act (CPSA) and Federal Hazardous Substances Act (FHSA), which regulate the same children’s products that are covered by the ordinance. The coalition asserted that Congress enacted both of these federal laws to ensure nationwide, uniform standards would govern the safety of children’s products rather than a patchwork of state and local regulations.
Rather than answer or move to dismiss the Complaint, in mid-May, the County joined with Plaintiffs in seeking a stay from the court of the proceedings to allow the County time to promulgate regulations implementing the law. The County stated that it expected to complete the regulations by November 1, 2015, and the parties agreed not to litigate until Plaintiffs had a chance to review those regulations to determine whether they should continue with the lawsuit. In any event, the County agreed not to enforce the law (scheduled to take effect in January 2016) or any regulations implemented pursuant to it until six months after any court decision or order on the preemption issue or appellate order. On May 15, the Court granted the requested stay of the proceeding.
Despite this litigation and publicity surrounding the law, much of it negative, other New York counties including Suffolk, Duchess, and Onondaga continue to consider, and in the case of Westchester County enact, similar local “children’s product safety” laws. For the same reasons stated in our initial blog post on this subject, we believe that while the motive behind such laws is well-intentioned, these ordinances tend to create confusion and cause more harm than good, particularly adverse economic ramifications. Product safety regulation is best left to the federal government, and in some cases, state governments. Ironically, just a few months after Albany County had passed its ordinance, the New York State Assembly passed the “Child Safe Products Act” (A5612) which also seeks to regulate “toxic chemicals” in children’s products by requiring New York State to publish a list of toxic chemicals, require disclosure of their use in children’s products, and eventually ban their use. Should that state bill become law, the parties to the litigation may need to address that as well should the case proceed.
Recent attempts to modify California’s Safe Drinking Water and Toxic Enforcement Act of 1986, Proposition 65, have been the work of the California Legislature. (See A Sane Tweak To Proposition 65 and California Reenters the GMO Food Labeling Arena – This Time Through The Legislature). This past week, however, the California Appellate Court for the First District in Environmental Law Foundation (ELF) v. Beech-Nut Nutrition Corp., 2015 B.L. 72035, (Cal. Ct. Ap., No. A139821, 3/17/15) upheld a trial judge who determined, after entertaining extensive expert testimony, that low levels of lead in products including baby food, fruit juice and packaged food do not produce exposures that trigger a requirement for warnings under Proposition 65.
The Beech-Nut case is one of the few situations where a Proposition 65 plaintiffs’ group has had to litigate what triggers a requirement for warnings under the law. In this case, the court held that the manufacturers met their burden of proof.
This space has addressed on several occasions, [HERE, HERE, HERE, and HERE], recent attempts to modify California’s Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65. Many of the comments on proposed changes to Proposition 65 have panned the proposed changes because they either do too little or make businesses’ lives more difficult.
Legislation introduced last week (AB543) by Rep. Bill Quirk (D-Hayward) proposes some sane changes to Proposition 65. Representative Quirk holds a PhD in Astrophysics and was a scientist at Lawrence Livermore National Laboratory before election to public office. It appears that Dr. Quirk understands both the issues of Proposition 65 and politics. Rather than taking a meat axe to the proposition (which more than likely will have no chance in the California Legislature), the legislation focuses on the scientific evidence needed before an exposure warning is mandated under Proposition 65.
Proposition 65 prohibits any business from knowingly and intentionally exposing any individual to a chemical known to California to cause Cancer or reproductive toxicity without giving a specified warning.
The proposed bill would provide that a business does not knowingly and intentionally expose an individual to a chemical known to California to cause Cancer or reproductive toxicity if there exists an exposure assessment that meets three specified requirements: