Monthly Archives: September 2018

Proposition 65 is intended to provide information to consumers in California to help them make informed choices about the products they use and buy. Under new regulations, Proposition 65 safe harbor warnings state that a particular product “can expose” consumers to one or more chemicals known by the State of California to cause cancer, birth defects, or reproductive toxicity. The California Office of Environmental Health Hazard Assessment (OEHHA) publishes and updates the list of chemicals that require warnings. What the Warnings Can’t Tell You Proposition 65 warnings are required only if the use of a product results in exposures to…

Two separate verdicts in California tell divergent stories about the safety of a popular herbicide manufactured by Monsanto. These decisions may ultimately raise even more questions about which products warrant Proposition 65 warnings and what the public should know about the products that bear these warnings. Jury Awards Plaintiff Award for Injury Resulting from Exposure to Roundup In August, a jury in San Francisco awarded $289 million to Mr. Johnson, a plaintiff who was diagnosed with non-Hodgkin’s lymphoma. The plaintiff worked for decades as a groundskeeper in a school and applied Roundup to weeds and shrubs on the school property…

Proposition 65 defendants may now have juries decide enforcement actions brought against them. An appellate ruling in June held that jury trials are permitted for at least some portion of consumer products cases, including those brought for violations of California’s “right to know” law, Proposition 65. This ruling reverses a 2007 appellate court opinion. The right to jury trials in Proposition 65 lawsuits was first examined in a 2007 case, DiPirro v. Bondo Corp., 153 Cal.App.4th 150. In that case, the court concluded that there was no right to a jury trial in Proposition 65 cases. But in June of…

The new amendments to the Prop 65 warning regulations adopted by the Office of Environmental Health Hazard Assessment (OEHHA) may cause more confusion and discord between manufacturers and retailers over who is primarily responsible for complying with the regulations. The new regulations, which amend the rules for providing clear and reasonable warnings, also establish a shift in liability for providing warnings under Article 6, “Responsibility to Provide Consumer Product Exposure Warnings.” The statutory Prop 65 warning obligation itself does not distinguish among entities in the supply chain; every entity, from manufacturers to retailers, are subject to Prop 65 unless exempt…

The legitimacy of the safe harbor limits for lead exposure created by California’s Office of Environmental Health Hazard Assessment (OEHHA) has been the subject of a contentious battle for years. The California Court of Appeals for the First District recently upheld the current 0.5 microgram per day safe harbor for lead (also known as the Maximum Acceptable Dose Level, or MADL) that was set in 1989. In doing so, the Court affirmed that the state acted permissibly in establishing that exposure level for the chemical. If the Court had revoked the safe harbor, then businesses would have been required to…