As this space has discussed on several occasions, there are many issues with California’s Prop 65 (check out some of my prior posts about unintended consequences here and here). In full disclosure, most of the issues I discuss here are presented from the viewpoint of businesses that find themselves at odds with citizen enforcers or their counsel, the language of the Proposition, and/or the California courts’ interpretation of that language.

However, Prop 65, otherwise known as California’s toxic substance warning law, appears to be the subject of equal opportunity complaining. Continue Reading Prop 65: GET THE LEAD OUT!

Auburn Courthouse Prop 65Recent 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.

Underlying Action:

Continue Reading California Appellate Court Takes on Proposition 65 Warning Triggers

CA Prop 65 warning label As this space has discussed, Proposition 65 has been the subject of attempts by the California Legislature to reform the enforcement of the law.

Recently, the California Office of Environmental Health Hazard Assessment (OEHHA), the lead agency for Proposition 65 implementation, has proposed new regulations to the Proposition 65 regiment.  The proposed changes to the warning text include:

  • A warning symbol on products (current proposal is an exclamation point inside a triangle)
  • Products that contain the “dirty dozen”/”list of 12” ingredients (Acrylamide, Arsenic, Benzene, Cadmium, Carbon Monoxide, Chlorinated Tris, Formaldehyde, Hexavalent Chromium, Lead, Mercury, Methylene Chloride, Phthalates) must be specifically identified by name in any Proposition 65 warning.
  • Any warnings previously approved in settlements or court judgments are not “grandfathered in.”* Continue Reading Proposition 65 May Mean More Than Warning Signs and Lawsuits