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January 2015

Lawsuit Against OEHHA Seeks Prop 65 Zero Threshold for Lead

On January 13, 2015, Mateel Environmental Justice Foundation filed a lawsuit against the California Office of Environmental Health Hazard Assessment in Alameda County Superior Court (Case No. RG15754547), alleging that the current Proposition 65 warning level for lead of 0.5 micrograms per day is based on old science and that “there is no threshold exposure level below which the neurodevelopmental toxicity of lead cannot be seen to occur.” Mateel, a prolific Proposition 65 bounty hunter which has filed thousands of Proposition 65 lawsuits, seeks an order requiring OEHHA to rescind the current Maximum Acceptable Dose Level (MADL) for lead — and, implicitly, seeks an order requiring OEHHA to establish a lead MADL of zero. Mateel and OEHHA have been in discussions about the current lead MADL for several months. But, rather than submitting a petition to the agency to formally review the current MADL, which would have triggered a transparent …Read More

CPSC Publishes Notice of Proposed Rulemaking on Phthalates in Children’s Products

On December 30, 2014, the Consumer Product Safety Commission published a Notice of Proposed Rulemaking prohibiting the manufacture for sale, offer for sale or importation into the United States any children’s toy that can be placed into a child’s mouth or child care article containing the following phthalates at more than 0.1 percent:  diisobutyl phthalate (DIBP), di-n-pentyl phthalate (DPENP), di-n-hexyl phthalate (DHEXP) and dicyclohexyl phthalate (DCHP).  CPSC also is proposing to broaden the existing interim prohibition on diisononyl phthalate (DINP) to all children’s toys and child care articles, regardless of whether the product may be placed in a child’s mouth.  Finally, the proposed rule would lift the current interim restrictions on di-n-octyl phthalate (DNOP) and diisodecyl phthalate (DIDP) in children’s toys and child care articles. Comments on the proposed rule must be received by March 16, 2015. The CPSC published this Notice of Proposed Rulemaking after reviewing the report of …Read More

Flurry of Proposition 65 Activity for DINP

The California Office of Environmental Health Hazard Assessment has issued two Notices of Public Hearing seeking comments on related requests for Proposition 65 Safe Use Determinations (SUDs) for diisononyl phthalate (DINP) in vinyl flooring products. The public hearing is scheduled for February 25, 2015, which also is the deadline for written public comments. OEHHA also has published a notice proposing to establish the No Significant Risk Level (NSRL) for DINP at 146 micrograms per day. Public comments on that proposed NSRL are due by February 17, 2015.  OEHHA does not plan to hold a public hearing on the proposed NSRL unless requested. DINP was listed on December 20, 2013, making the Proposition 65 warning requirement effective on December 20, 2014. OEHHA’s listing decision was controversial, and the American Chemistry Council filed suit against the agency in Sacramento County seeking the agency to withdraw its decision.  The trial in that lawsuit …Read More

BPA Back on Proposition 65 List?

On December 5, 2014, the American Chemistry Council (ACC) — and the business community — suffered a loss in a lawsuit brought against the California Office of Environmental Health Hazard Assessment over the Proposition 65 listing of bisphenol A (BPA). In a twenty-page ruling, Sacramento County Superior Court Judge Timothy Frawley concluded that OEHHA did not abuse its discretion when in 2013 it proposed to list the chemical as a reproductive toxicant under the Proposition 65 authoritative bodies mechanism. Judge Frawley entered judgment denying ACC any relief. The December 2014 ruling followed ACC’s April 2013 interim victory in the lawsuit when a different judge in the case issued a preliminary injunction prohibiting OEHHA from listing BPA. The December 2014 ruling maintains that preliminary injunction in place until the expiration for the time to file a notice of appeal, at which time ACC, if it chooses to appeal the ruling, may ask the court of appeals …Read More

OEHHA Releases Proposed Revisions to Warning Regulations

On January 12, 2015, the California Office of Environmental Health Hazard Assessment posted on its website a formal regulatory package revising the Proposition 65 warning regulations and creating a Proposition 65 website. This formal regulatory package is expected to be published by January 16, 2015 in the California Regulatory Notice Register for formal notice and comment.  Written comments must be submitted by April 8, 2015, and OEHHA will hold a public hearing on March 25, 2015. With pressure from the Governor’s office to “fix” Proposition 65, OEHHA’s proposed revisions are intended to achieve the goals of providing more meaningful warnings to consumers and of reducing unnecessary litigation.  With respect to the latter goal, the proposed revisions likely will increase, rather than decrease, enforcement actions. Among the key proposed provisions: The proposed regulations would retain the current safe harbor approach, meaning that a business may use any text or method of transmission …Read More