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
On November 8, 2016, California voters approved Proposition 67, the statewide ban on carry-out plastic bags, by 52 percent. At the same time, California voters rejected Proposition 65 by 55 percent–a measure that would have sent the proceeds from sales of paper bags and reusable bags to environmental causes.
Main Provisions of Proposition 67
- Prohibits most grocery stores, convenience stores, large pharmacies, and liquor stores from providing single-use plastic carry-out bags. The provision excludes plastic bags used for certain purposes, such as those used for unwrapped produce.
- Creates new standards for the material content and durability of reusable plastic carryout bags. The California Department of Resources Recovery and Recycling (CalRecycle) would be responsible for ensuring that bag manufacturers meet these requirements. The measure also defines standards for other types of carryout bags.
- Requires a store to charge at least 10 cents for any carryout bag that it provides to consumers at checkout. Certain low-income would not have to pay the charge.
Main Provisions of Proposition 65
- Redirects carryout bag revenue to a new state environmental fund called the Environmental Protection and Enhancement Fund.
- Allows funds to be used for grants to support programs and projects related to (1) drought mitigation; (2) recycling; (3) clean drinking water supplies; (4) state, regional, and local parks; (5) beach cleanup; (6) litter removal; and (7) wildlife habitat restoration.
- Takes effect only if both propositions pass and Proposition 65 gets more “yes” votes than Proposition 67.
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.
On May 17, 2016, the U.S. Department of Agriculture (“USDA”) announced that it is allowing an additional 200,000 short tons of cane sugar imports to meet food manufacturers’ increasing demand for non-genetically modified sugar products. In its news release, the agency explained that
“USDA recognizes that America’s beet sugar producers have made significant investments in a strong 2016 crop, but they continue to face uncertainty. Based on the projections in the May 10, 2016 World Agricultural Supply and Demand Estimates (WASDE) report, USDA took this action as required by the Farm Bill in order to maintain an adequate sugar supply in an uncertain market. This uncertainty is due to inaction on GE [genetic engineering] legislation and lack of consumer information about genetic technology.”
USDA further noted that it would “closely monitor sugar production, stocks, consumption, imports, and all sugar market and program variables on an ongoing basis,” and it recognized that the agency “may need to make additional adjustments to imports or domestic marketing allotments.”
This USDA action regarding cane sugar imports is just one example of the market consequences stemming from the uncertainty regarding mandatory GE labeling legislation at both the federal and state levels. Manufacturers are scrambling to find new sugar suppliers, reformulate their products, and/or relabel their products that could enter Vermont after the July 1, 2016 compliance date for Vermont’s Act 120 (which requires food manufacturers to label all FDA-regulated products that have been produced with GE ingredients). Confusion and uncertainty will likely continue among manufacturers and consumers alike as we get closer to that date, as Congress continues to go back-and-forth on a federal law, and as other states begin taking up their own, potentially disparate GE labeling bills.
Stay tuned to this space for more news regarding GE or “GMO” food labeling laws. Our prior GMO coverage is available here.
Earlier this month, California’s Office of Environmental Health Hazard Assessment (“OEHHA”) issued a Notice of Emergency Action to allow temporary use of a standard point-of-sale warning message for bisphenol A (“BPA”) exposures from canned and bottled foods and beverages. This emergency rulemaking came only three weeks before California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (“Proposition 65”) warning requirements for BPA becomes effective on May 11, 2016. Several days later, OEHHA also added styrene to the Proposition 65 list as a known carcinogen.
On July 1, 2016, Vermont’s Act 120 will require food manufacturers to indicate in the labeling of all products regulated by FDA when the food has been produced with the use of genetic engineering (GE). Unless Congress acts with unusual swiftness to pass federal legislation regarding GE or “GMO” food labeling that preempts conflicting state or local laws, Vermont’s law will result in the beginning of patchwork legislation among the states on this issue. The effect of such legal patchwork will likely lead to confusion among consumers and manufacturers alike – and has forced food manufacturers to grapple with the question of whether to change the labeling for all their nationally distributed products to comply with Vermont’s law or to switch to non-GE food ingredients to avoid having to comply at all. Among other things, manufacturers are concerned that compliance will significantly increase the costs of production, which will be passed on to consumers.
Law360 recently featured an article written by my colleagues Joanne Hawana and Benjamin Zegarelli regarding the sudden urgency surrounding GE labeling. The article provides a great overview of the current GE labeling state of affairs. You can check it out here.
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.
A courtroom battle concerning a manufacturer’s alleged false marketing of allegedly foreign-produced products as “Made in USA” is potentially nearing a resolution. On November 30, 2015, the lead plaintiff in Paz v. AG Adriano Goldschmied, Inc. et al. asked the court for preliminary approval of a $4 million settlement between class members and defendants Nordstrom, Inc. and AG Adriano Goldschmied Inc. (“AGAG”). The lawsuit accuses defendants of falsely marketing jeans—manufactured by AG and sold by Nordstrom—as entirely made in America when they allegedly contained foreign components (such as the jeans’ fabric, thread, buttons, and rivets). Bringing claims under California’s consumer protection laws, plaintiff’s class action complaint alleges that consumers’ belief that domestically-made products are of higher quality than foreign-made products allows defendants to charge a premium for clothes labeled “Made in USA.” Continue Reading Settlement Looms for “Made in USA” Jeans Suit