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OEHHA Proposes Amendment to Proposition 65 Notice Regulations

The California Office of Environmental Health Hazard Assessment has announced that it intends to amend the Proposition 65 notice regulation at Title 27, California Code of Regulations Section 25903(b)(2)(E) and Appendix A, to “clarify the content required in notices of violation served on alleged violators of Proposition 65.” Comments on the proposal are due by July 3, 2017 and may be submitted electronically, per the notice. Under current regulations, a Proposition 65 Notice of Violation must include an Appendix A. Among other things, Appendix A must include a Special Compliance Procedure and Proof of Compliance Form, which alleged violators may use to resolve certain — and very specific — types of alleged Proposition 65 violations. The Special Compliance Procedure and Proof of Compliance Form became required after Proposition 65 was amended to include a special, streamlined, and low-cost way to resolve alleged violations involving: An alleged exposure to alcoholic beverages that are …Read More

Senate Committee Approves S. 951, The Regulatory Accountability Act

The Senate Committee on Homeland Security and Governmental Affairs gave the green light to the Regulatory Accountability Act (RAA) on May 17, 2017. The RAA (S.951), introduced by Senator Portman (R-OH) and Senator Heitcamp (D-ND), aims to “reform the process by which Federal agencies analyze and formulate new regulations and guidance documents.” If passed, the bill, which accompanies a similar bill passed by the House (H.R. 5), could make it much more difficult for agencies to implement regulations. Although billed by its sponsors and co-sponsors — Senator Hatch (R-UT) and Senator Manchin (D-WV) — as a bipartisan bill, support for the legislation is divided largely along partisan lines. The bill has not yet been scheduled for a full-bodied debate or vote. Changes to Agencies’ Authorities If passed, the RAA would be the first update to the Administrative Procedural Act since 1946. The bill changes the federal rulemaking process, as well as …Read More

OEHHA To Hold Public Hearing on Lead in Candy

The Office of Environmental Health Hazard Assessment (OEHHA) is holding a public hearing on July 6, 2017 (rescheduled from June 19, 2017) from 10 am to 12 pm in response to a petition from the Center for Environmental Health (CEH) requesting OEHHA to “commence the regulatory process to issue regulations pursuant to Health & Safety Code §110552 setting a ‘naturally occurring’ lead level in candy containing chili and tamarind.” The hearing will be held in the Coastal Hearing Room at Cal/EPA’s headquarters located at 1001 I Street in Sacramento and also will be broadcast online.  The deadline for written comments on the petition is July 3, 2017 and comments may be submitted electronically, per OEHHA’s notice. Health & Safety Code §110552 is part of the Sherman Food, Drug, and Cosmetic Law (Health & Safety Code sections 106500, et seq.) and requires OEHHA to establish the “naturally occurring” lead level in candy containing …Read More

Proposition 65 Notices Target Cannabis

In a single week this month, a new Proposition 65 plaintiff, Michael Murphy, has issued almost 700 Proposition 65 Notices of Violation to medical cannabis dispensaries located throughout California. Mr. Murphy, who in some of these notices is identified as a manager of Clean Cannabis Initiative, LLC, alleges that certain medical cannabis edibles and smokable products contain the pesticides myclobutanil, carbaryl and malathion. Myclobutanil is a Proposition 65-listed reproductive toxicant, added to the list in 1999. Carbaryl was added to the Proposition 65 list as a carcinogen in 2010. In an interesting twist, malathion was added to the Proposition 65 list as a carcinogen on May 20, 2016; the warning requirement becomes effective May 20, 2017, after the date of the notices. These notices follow another round of recent notices from another plaintiff, the Center for Advanced Public Awareness (CAPA), issued to medical cannabis dispensaries. The CAPA notices allege exposures …Read More

LifeScienceRisk to Offer Proposition 65 Insurance Coverage for Herbal Product and Dietary Supplement Industry

LifeScienceRisk (LSR) has announced that it now offers Proposition 65 insurance coverage for the herbal product and dietary supplement industry. Developed in collaboration with the American Herbal Products Association (AHPA), LSR is the first insurance company to offer Proposition 65 specific insurance for this industry, which can be bundled on top of another more comprehensive insurance policy. The coverage is offered with a choice of limits and deductibles to fit a range of budgets. Insurance coverage for Proposition 65 claims has always been problematic. At least one court has concluded that there is no coverage under commercial general liability policies because Proposition 65 claims do not allege physical bodily injury. (See Ulta Salon v Travelers Property Cas Co of America, 197 Cal.App.4th 424 (2011).) In 2015, Wells Fargo Insurance began to offer policies covering Proposition 65-listed plasticizers. LSR’s Proposition 65 insurance is unique in its coverage of Proposition 65 claims involving …Read More