Monthly Archives: October 2018

Requirements under Proposition 65 are typically more stringent than federally mandated regulations. When warning requirements under Proposition 65 conflict with a federal law or federal policy, the courts must determine which legal scheme prevails. The California Supreme tackled this issue in 2004 and laid the groundwork for the basic principles governing inconsistencies between state mandated Proposition 65 rules and federally based regulations. Dowhal v. SmithKline Beecham Consumer Healthcare, 32 Cal. 4th 910 (2004) was the first case in which the California Supreme Court ruled on the issue of federal preemption of the Proposition 65 warning requirement. In the case, the…

“Safe Use Determinations” (SUDs) are statements issued by the California Office of Environmental Health Hazard Assessment (OEHHA) providing guidance on Proposition 65. The written guidance is intended to apply Proposition 65 regulations to particular facts presented by a business regarding its activities and compliance with the statute. A SUD can only be requested and relied upon as it pertains to a discrete set of facts under specific conditions. Similarly, the SUD can only be granted for the chemical identified in the request and not for other listed chemicals that are present in the product. Even with these restrictions, SUDs may…

In June 2009, marijuana smoke was added to the list of carcinogenic chemicals maintained by the California Office of Environmental Health Hazard Assessment (OEHHA). To avoid enforcement actions, cannabis companies, including dispensaries, should be sure to take appropriate steps to address their Proposition 65 risk, which may mean providing Proposition 65 warnings. What Can Cannabis Dispensaries Do? Cannabis dispensaries essentially act as retailers, and therefore should review the retailer-specific provisions in the new Proposition 65 warning regulations to understand their warning obligations. For example, dispensaries may wish to use contractual agreements to allocate the obligation to warn to their suppliers,…

Under the new Proposition 65 warning regulations that became effective August 30, 2018, safe harbor warnings must identify at least one chemical for each health endpoint being warned for. This requirement may have marketing impacts, especially for companies that manufacture foods and beverages like soft drinks. Many sodas contain 4-Methylimidazole (4-MEI) and furfuryl alcohol. Both of these chemicals are identified on the Proposition 65 list as carcinogens. The chemical 4-MEI is found in caramel coloring used for soft drinks. The effects of consumption of 4-MEI has been the subject of much controversy. In 2012, Coca-Cola Co. and PepsiCo Inc. lowered…