Recently, a federal judge sitting in the Eastern District of California (Sacramento), for the first time, refused to require a manufacturer to place a Prop 65 warning on its product based on a finding that the requirement would violate the company’s First Amendment rights. We have been following this developing issue for some time. (See prior posts here, here, and here.) Continue Reading First Amendment Still Trumps Prop 65
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!
A recent Federal Court decision on the issue of whether to grant a preliminary injunction in the ongoing saga of the appropriateness of adding the pesticide Glyphosate to the CA Prop 65 list (see prior posts, here and here) has become the grist for the “Fake News” phenomenon. More specifically, Momsacrossamerica.org issued a press release on February 28, 2018 entitled “Judge Says Public Doesn’t Need Cancer Warning.”
However, a quick scan of the decision issued on February 26th reveals that the judge did no such thing. Continue Reading Prop 65 Preliminary Injunction and “Fake News”
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
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
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