Legal Blog

Federal law requires that ingredient labels be placed on retail cosmetics sold to consumers.  Now California has passed legislation requiring that cosmetics sold in salons and other professional settings contain labels displaying their ingredients. AB 2775 is intended to extend requirements for clear and open disclosure that already exist for a variety of products, like foods and cleaning agents, to professional cosmetics. In enacting this legislation, California becomes the first state in the country to require mandatory disclosure of professional cosmetic ingredients. The bill, which will take effect on July 1, 2020, is said to be another victory for advocates…

Proposition 65 requires businesses to provide “clear and reasonable” warnings prior to exposing individuals to listed chemicals. Violations of this warning requirement are redressed exclusively through civil lawsuits. A plaintiff who can demonstrate that an entity failed to provide warnings in compliance with the statute may seek civil penalties (of which 25% is paid to the plaintiff), injunctive relief, and payment of costs and attorney’s fees. Because of the ease with which a plaintiff can bring a Proposition 65 lawsuit and the high potential payout for plaintiffs and their attorneys, defendants who are lax in compliance can face significant penalties.…

Monsanto’s popular herbicide, Roundup, was recently in the news when a plaintiff was awarded $289 million in damages after developing cancer that was allegedly caused by long term exposure to glyphosate, the active chemical in Roundup. This verdict was soon followed by a report by the Environmental Working Group announcing that traces of the herbicide were found in popular breakfast foods. Now questions about the safety of exposure to the chemical have resurfaced, even as evidence still suggests only a tenuous connection between the herbicide and cancer. The chemical in question – glyphosate – has a long and convoluted history.…

Proposition 65 is often misinterpreted as banning certain chemicals that are known to cause cancer or reproductive harm in California. The purpose of Prop 65 is not to prohibit certain chemicals or to require substitution of chemicals. Rather, the law mandates warnings when exposures to listed chemicals exceed specified regulatory levels. Identifying exposure levels is not synonymous with determining how much of the chemical is present in the product. This distinction is critical in enforcement actions when assessing whether a company has complied with the Proposition 65 warning requirement. When deciding whether a product requires a Proposition 65 warning, the…

Requirements under Proposition 65 are typically more stringent than federally mandated regulations. When warning requirements under Proposition 65 conflict with a federal law or federal policy, the courts must determine which legal scheme prevails. The California Supreme tackled this issue in 2004 and laid the groundwork for the basic principles governing inconsistencies between state mandated Proposition 65 rules and federally based regulations. Dowhal v. SmithKline Beecham Consumer Healthcare, 32 Cal. 4th 910 (2004) was the first case in which the California Supreme Court ruled on the issue of federal preemption of the Proposition 65 warning requirement. In the case, the…