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Between A Rock and A Hard Place – Or, When Is A Proposition 65 Exempt Business Not Really Exempt?

By Ann Grimaldi and Jennifer Karpinski Singh It happens too often to overlook: a supplier that is exempt from Proposition 65’s requirements, because it employs less than 10 employees, receives a defense and indemnity demand from its retailer customer who, in turn, received a Proposition 65 Notice of Violation. The supplier believes itself exempt from Proposition 65’s requirements – or, more likely, is not even aware of this California right-to-know law. Yet the retailer’s supply agreement requires the supplier to “comply with all applicable laws” and to warrant that its products are labeled in compliance with “all applicable regulations.” Now, confronted with its customer’s defense and indemnity demand, the small supplier effectively has become ensnared in a Proposition 65 enforcement action. Hindsight is 20/20: should the business have complied with Proposition 65 even though it was exempt? If the answer was “yes” before the new Proposition 65 warning regulations were …Read More

Federal Judge Prohibits Enforcement of Proposition 65 Warning Requirement for Glyphosate – But The Devil Is in The Details

An ongoing lawsuit against California’s Office of Environmental Health Hazard Assessment (OEHHA) and the California Attorney General reached a critical point on February 26, 2018, when a federal district court applied First Amendment principles to prohibit the enforcement of the Proposition 65 warning requirement for glyphosate. (National Association of Wheat Growers, et al. v. OEHHA, et al. (Eastern District California Case No. 2:17-2401 WSB EFB).) The ruling is notable for its acknowledgement that the glyphosate listing does not reflect worldwide scientific consensus regarding the chemical’s actual cancer risk. However, the prohibition on enforcement may not be as broad as the regulated community thinks or hopes. Under Proposition 65, formally the Safe Drinking Water and Toxic Enforcement Act of 1986, “clear and reasonable” warnings are required for exposures to chemicals identified on the Proposition 65 list of carcinogens and reproductive toxicants. Glyphosate, a widely used herbicide produced by Monsanto Company, was …Read More

Could OEHHA Add Processed Meats to Proposition 65 List?

On February 12, 2018, California State Senator Ricardo Lara introduced a resolution (SCR-100) urging the Office of Environmental Health Hazard Assessment (OEHHA) to add processed meat to the state’s list of substances known to cause cancer under the Proposition 65 Labor Code listing mechanism. Processed meats include those such as bacon, ham, hot dogs, deli meats and more.  This resolution follows the International Agency for Research on Cancer’s (IARC) classification of processed meats as a Class 1 carcinogen in 2015, highlighting a meta-analysis concluding that consuming 50 grams of processed meat per day increases the risk of colorectal cancer by 18%. The resolution is backed by the Physicians Committee for Responsible Medicine and Social Compassion in Legislation. It is unclear whether this resolution will galvanize OEHHA into listing processed meats. As an initial matter, the lapse of time between IARC’s 2015 classification and the recent resolution suggests that OEHHA is disinclined …Read More

DTSC Releases Product – Chemical Profile for Perfluoroalkyl and Polyfluoroalkyl Substances (PFASs) in Carpets and Rugs

The California Department of Toxic Substances Control (DTSC) has released a discussion draft of its Product – Chemical Profile for Perfluoroalkyl and Polyfluoroalkyl Substances (PFASs) in Carpets and Rugs, pursuant to the Safer Consumer Products (SCP) Program. DTSC is accepting comments on the draft here until March 23, 2018, and will be holding a public workshop on March 7, 2018. PFASs encompass a large family of chemicals containing a carbon and fluorine backbone. These chemicals have unique characteristics, being resistant to heat, water and oil. PFASs have been used in consumer products; in carpets and rugs, these chemicals have been used to confer resistance to dirt and soil. DTSC has released the Profile in advance of formally proposing carpets and rugs containing PFASs as Priority Products under the SCP Program. Priority Products are product-chemical combinations which, when identified via a formal rulemaking process, must undergo alternatives assessments to evaluate whether safer …Read More

Update on Private Proposition 65 Enforcement

by Aisha Keown-Lang A larger than usual number of products, thirty-five in total, were targeted last week in Notices of Violation for Proposition 65 private enforcement, and for a wider variety of chemicals than usual. Other than the usual phthalates and lead/lead compounds, targeted chemicals included acrylamide, cadmium, bisphenol A (BPA), and diethanolamine. The largest class of targeted products this week was dietary supplements, with a total of eight targeted supplements.  Whereas for the last several years the Environmental Research Center (ERC) has been the most active private enforcer for dietary supplements, there appears to be a new enforcer in town, Safe Products for Californians, LLC, which issued most of the dietary supplement notices last week. One supplement, purportedly sold by Muscle Gauge Nutrition and whose noticing party was the Environmental Research Center, Inc., was targeted for alleged exposures to cadmium. A second product of a different variety was targeted …Read More