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DTSC Releases Draft 2018-2020 Priority Product Workplan under the Safer Consumer Product Program

On February 9, 2018, the California Department of Toxic Substances Control (DTSC) released its draft 2018-2020 Priority Product Workplan. The Workplan, once finalized, will serve as the starting point for DTSC to select Priority Products under its Safer Consumer Product (SCP) Program. Written comments on the draft will be accepted beginning February 12, 2018, with a deadline of March 9, 2018. DTSC also will hold a public workshop on the draft Workplan on February 26, 2018 at Cal/EPA headquarters in Sacramento. Under the SCP Program, DTSC identifies product and chemical of concern combinations – i.e., Priority Products – via formal rulemaking. The “responsible entity” for a Priority Product – a manufacturer, assembler or retailer – must undertake an alternative assessment of the Priority Product to determine whether a safer alternative to the identified chemical of concern is available. Regulatory responses (such as labeling or even product bans) may be imposed …Read More

Will Coffee Require Cancer Warnings in California? – And Other Proposition 65 Developments

By Aisha Keown-Lang A California state judge will soon decide whether coffee will require Proposition 65 warnings. The lawsuit in question, filed by Council for Education and Research on Toxics (CERT) in 2010, claims that dozens of coffee suppliers and retailers failed to provide clear and reasonable Proposition 65 warnings for acrylamide, a Proposition 65-listed carcinogen that is formed during the coffee roasting process. If CERT succeeds, cancer warnings could be required on cups of coffee or shops that sell coffee, and coffee retailers could face high fines for failure to comply. Two defendants, BP West Coast Products and Yum Yum Donuts Inc. have chosen to settle and agreed to post warnings and pay fines of $675,000 and $250,000, respectively. This enforcement action highlights the criticism that Proposition 65 has encountered for years. The law allows private citizens, groups, and attorneys to take businesses to court on behalf of the …Read More

OEHHA Releases Guidance on Proposition 65 Safe Harbor Warnings

By Jennifer Karpinski Singh In December 2017, the California Office of Environmental Health Hazard Assessment (OEHHA) released Proposition 65 guidance for website and catalog safe harbor warnings. The guidance, in the form of questions and answers, is intended to clarify the new safe harbor warning requirements that will become fully effective on August 30, 2018. As an initial note, businesses are not required to comply with OEHHA’s safe harbor provisions and are technically free to use any warning text and method of transmitting warnings in order to comply with Proposition 65 – as long as the warnings are “clear and reasonable” under the statute. However, disputes may arise about whether a warning is “clear and reasonable,” and businesses must be prepared to defend the warnings they use. To provide certainty to businesses and help avoid disputes on what is “clear and reasonable,” OEHHA (and its predecessor agency back in 1987) …Read More

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