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2017 Ends with Flurry of Proposition 65 Activity

On both the regulatory and the enforcement sides, December 2017 was marked by significant Proposition 65 activity. On the regulatory side, the California Office of Environmental Health Hazard Assessment (OEHHA) finalized amendments to the new warning regulations and issued guidance interpreting the new regulations on internet and catalog warnings. The agency also listed new chemicals, proposed a warning level, and issued a Safe Use Determination. And the holiday season had no significant slowing effect on the issuance of Notices of Violation: 185 NOVs were served in December. In a significant development, key players in the chocolate industry have entered into a settlement resolving As You Sow’s claims regarding alleged exposures to lead and cadmium in chocolate products. Regulatory activity On December 6, 2017, OEHHA announced its adoption of amendments to the new Proposition 65 warning regulations. Some of the amendments are non-substantive. For example, OEHHA has discarded the use of …Read More

Warning for the New California Adult Use Marijuana Industry: Doing Business in California Can Expose You to Proposition 65 Enforcement Actions

With the legalization of adult use cannabis in California, entities in the cannabis supply chain need to be aware that they may become attractive targets of Proposition 65 enforcement actions. As the new Proposition 65 warning regulations become effective later this year, Proposition 65 compliance and litigation risk management may become as challenging as the new marijuana regulatory structure now in place. These businesses should inform themselves of Proposition 65’s requirements and take steps to minimize their litigation risk. The cannabis industry has expended, and continues to expend, substantial resources in complying with the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA) and related regulations, which are now more complex than ever. Proposition 65, not being a cannabis-specific law, may fall off this emerging industry’s radar. This has implications beyond the burden and cost of defending a Proposition enforcement action: since the new MAUCRSA regulations require cannabis businesses to …Read More

Proposition 65 Settlement May Establish New Industry Standard for Lead and Cadmium in Chocolate

Nine chocolate manufacturers have entered into a comprehensive settlement resolving Proposition 65 claims that they allegedly exposed individuals to lead and cadmium in chocolate products without clear and reasonable Proposition 65 warnings. The settlement, intended to inject some scientific discipline into the required compliance measures while establishing a new industry standard, is set to be reviewed by the San Francisco Superior Court for approval on February 14, 2018. The Proposition 65 claims were brought by As You Sow, which issued 60-day Notices of Violation against several manufacturers and retailers of chocolate products beginning in 2014. As You Sow followed up on one such Notice of Violation when it filed a lawsuit against retailer Trader Joe’s Company in San Francisco Superior Court in November 2015. Reflecting the statutory and regulatory preference that manufacturers, rather than retailers, bear the obligation of Proposition 65 compliance, the parties to the settlement represent a significant …Read More

Governor Brown Vetoes Butane Bill

by Jennifer Karpinski Singh California Governor Jerry Brown has vetoed Assembly Bill 1120, which would have amended Section 11107 of the Health and Safety Code to add butane as a controlled substance. This proposed amendment, triggered by concerns arising from illegal butane hash oil production, was intended to restrict the sale of butane products and create a database of butane purchasers maintained by the Department of Justice. In Governor Brown’s veto message, he noted that the bill was too “expansive” and placed an undue burden on an industry that has numerous “legitimate uses.”  Governor Brown’s full statement was as follows: I empathize with the author’s intent to address the tragic explosions that can occur at illegal butane hash-oil production sites.  Unfortunately, I believe this bill takes a very expansive approach that may not ultimately solve the problem.  The Department of Public Health is currently working on regulations that will be …Read More

Should Your Proposition 65 Consent Judgment Be Modified?

By Ann Grimaldi and Jennifer Karpinski Singh If your business is currently using Proposition 65 warnings pursuant to a consent judgment, take heed: You may need to modify the judgment to address business, not legal, pressure to use the new warnings recently established under the new safe harbor warning regulations that go into effect August 30, 2018. California law has long required businesses to provide clear and reasonable warnings prior to exposing individuals to chemicals placed on the Proposition 65 list. However, recent shake-ups in what defines “clear and reasonable” are changing the liability landscape for businesses selling products in, or destined for, California. On August 30, 2016, the Office of Environmental Health Hazard Assessment (OEHHA) adopted new safe harbor warning regulations, which become effective and enforceable on August 30, 2018. As of that date, the safe harbor warnings that have been in place since 1988 will no longer provide …Read More