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April 2015

Appellate Court Opinion Clarifies Key Aspects of Proposition 65 Exposure Assessments

In a significant victory for defendants and the regulated community at large, the California Court of Appeal (First Appellate District) upheld a Proposition 65 trial court defense win.  In doing so, the appellate court answered two key questions that have muddied the Proposition 65 compliance and defense waters for decades:  May a company average the results of chemical testing of its products? And may a company average the exposure to a reproductive toxicant? The answer to both questions is “yes.” In Environmental Law Foundation v. Beech-Nut Nutrition Corp., the plaintiff filed a Proposition 65 lawsuit against a number of food manufacturers and retailers, alleging exposures to lead in foods intended primarily for infants and children.  Following an 11-day bench trial at which experts for both sides testified, the trial court entered judgment in favor of defendants. Among the disputes raised by the parties and ultimately resolved by the appellate court was the …Read More

BPA Being Considered for Listing as Proposition 65 Female Reproductive Toxicant

On May 7, 2015, the Developmental and Reproductive Toxicant Identification Committee (DARTIC) will consider the listing of Bisphenol A as a Proposition 65 female reproductive toxicant, under the law’s State’s Qualified Experts listing mechanism.  The meeting follows the release of related Hazard Identification Materials by the Office of Environmental Health Hazard Assessment for public notice and comment on February 20, 2015. The DARTIC is one of two committees of the OEHHA Science Advisory Board.  (The other is the Carcinogen Identification Committee.)  Members are experts in designated fields and appointed by the California Governor.  Under Proposition 65, the DARTIC advises the Governor and OEHHA on a number of matters and is empowered to “render an opinion, pursuant to subdivision (b) of Section 25249.8 of [Proposition 65], as to whether specific chemicals have been clearly shown, through scientifically valid testing according to generally accepted principles, to cause reproductive toxicity.”  This “clearly shown” standard is the …Read More