Ninth Circuit Upholds Preliminary Injunction in Prop 65 Acrylamide Challenge – But It’s Not Over Yet

In a victory for the California Chamber of Commerce and the regulated community at large, the Ninth Circuit upheld a preliminary injunction prohibiting public and private enforcers from filing new Proposition 65 lawsuits alleging exposures to acrylamide in foods and beverages. However, Council for Education on Research and Toxics (CERT), who intervened in CalChamber’s lawsuit against the California Attorney General – and who filed the appeal – now has filed a petition for rehearing en banc. CERT also has filed a motion in the lower court asking that the preliminary injunction be vacated based on allegations that the judge who…

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OEHHA Dials Back Short Form Warning Proposal

On April 5, 2022, the California Office of Environmental Health Hazard Assessment (OEHHA) published further revisions to its proposal to amend the Proposition 65 short form warning. Comments on the revised proposal must be submitted no later than April 20, 2022 and may be submitted here. The latest proposal still would require the short form warning to identify the chemical being warned for. Still, OEHHA includes changes that overall render it more palatable than OEHHA’s original proposal: The label size restrictions have been removed, so that the short form warning can be used on any label size; The font size…

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California Appellate Court Opinion Answers Longstanding Questions – And Further Incentivizes Warnings

In a March 11, 2022 opinion, the California Court of Appeal, First Appellate District, resolved key questions pertaining to Proposition 65 compliance and enforcement. While the key take-away message is that online retailers cannot rely on federal law to absolve them of responsibility to provide Proposition 65 warnings, the opinion answers a number of longstanding questions for the broader regulated community. These answers will provide even further incentives for businesses to provide warnings for consumer products in order to avoid enforcement lawsuits. Background In 2014, plaintiff Larry Lee issued a Notice of Violation alleging that Amazon.com failed to provide clear…

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OEHHA Proposes Revisions to Proposition 65 Short Form Warning Amendments

On December 13, 2021, the California Office of Environmental Health Hazard Assessment (OEHHA) published revisions to its earlier proposal in January 2021 to amend the Proposition 65 short form warning. Under the recent revisions to the proposed amendments, use of the short form warning for consumer products would be restricted to labels of specific sizes and would require the identification of the chemical(s) being warned for. If adopted, these short form safe harbor warning requirements will become effective one year after their formal approval by the Office of Administrative Law (OAL). The deadline for public comments on the current proposal…

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The (Possibly) Short Life of the Proposition 65 Short Form Warning

With significant changes to Proposition 65’s warning requirements on the horizon, many businesses are asking how short-lived the Prop 65 short-form warning will be.  Although we do not yet have an answer, we do know that, earlier this year, the California Office of Environmental Health Hazard Assessment (“OEHHA”) announced proposed amendments to the short-form warning, which has seen widespread use by businesses looking to comply with Prop 65. Proposition 65 requires businesses to provide “clear and reasonable” warnings before knowingly and intentionally exposing California consumers to one of over 900 chemicals listed as known to the State to cause cancer…

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