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 issue of whether it is appropriate for defendants to average the results of lead testing of the products at issue. Plaintiff’s position, and a commonly held position among the Proposition 65 plaintiffs’ bar, is that averaging is not allowed and the highest test result must be used to calculate whether the exposure is above or below the 0.5 microgram per day warning level for lead. The appellate court disagreed, concluding that nothing in Proposition 65 prohibits the averaging of test results.
ELF also had argued that Proposition 65 prohibits averaging exposures to reproductive toxicants like lead. This, too, is a commonly held position among the plaintiff’s bar. Under this view, if the exposure to a reproductive toxicant exceeds its warning level on a single day, a warning is required even if the reproductive effect would occur (if at all) only by exposures occurring over a longer period of time. Defendants argued that the law allows a single day exposure to be averaged over the number of days between exposures. The appellate court rejected plaintiff’s position on this issue and agreed that defendants’ experts had made a sufficient showing that it was appropriate to average exposures to lead.
This opinion will be very helpful for members of the regulated community evaluating whether Proposition 65 warnings to reproductive toxicants are required for their products or services. That said, there are a number of nuances in the appellate opinion, and entities wishing to rely on it at a minimum should consult with toxicology experts experienced in undertaking Proposition 65 exposure assessments.