Legal Blog

“Safe Use Determinations” (SUDs) are statements issued by the California Office of Environmental Health Hazard Assessment (OEHHA) providing guidance on Proposition 65. The written guidance is intended to apply Proposition 65 regulations to particular facts presented by a business regarding its activities and compliance with the statute. A SUD can only be requested and relied upon as it pertains to a discrete set of facts under specific conditions. Similarly, the SUD can only be granted for the chemical identified in the request and not for other listed chemicals that are present in the product. Even with these restrictions, SUDs may…

In June 2009, marijuana smoke was added to the list of carcinogenic chemicals maintained by the California Office of Environmental Health Hazard Assessment (OEHHA). To avoid enforcement actions, cannabis companies, including dispensaries, should be sure to take appropriate steps to address their Proposition 65 risk, which may mean providing Proposition 65 warnings. What Can Cannabis Dispensaries Do? Cannabis dispensaries essentially act as retailers, and therefore should review the retailer-specific provisions in the new Proposition 65 warning regulations to understand their warning obligations. For example, dispensaries may wish to use contractual agreements to allocate the obligation to warn to their suppliers,…

Under the new Proposition 65 warning regulations that became effective August 30, 2018, safe harbor warnings must identify at least one chemical for each health endpoint being warned for. This requirement may have marketing impacts, especially for companies that manufacture foods and beverages like soft drinks. Many sodas contain 4-Methylimidazole (4-MEI) and furfuryl alcohol. Both of these chemicals are identified on the Proposition 65 list as carcinogens. The chemical 4-MEI is found in caramel coloring used for soft drinks. The effects of consumption of 4-MEI has been the subject of much controversy. In 2012, Coca-Cola Co. and PepsiCo Inc. lowered…

Proposition 65 is intended to provide information to consumers in California to help them make informed choices about the products they use and buy. Under new regulations, Proposition 65 safe harbor warnings state that a particular product “can expose” consumers to one or more chemicals known by the State of California to cause cancer, birth defects, or reproductive toxicity. The California Office of Environmental Health Hazard Assessment (OEHHA) publishes and updates the list of chemicals that require warnings. What the Warnings Can’t Tell You Proposition 65 warnings are required only if the use of a product results in exposures to…

Two separate verdicts in California tell divergent stories about the safety of a popular herbicide manufactured by Monsanto. These decisions may ultimately raise even more questions about which products warrant Proposition 65 warnings and what the public should know about the products that bear these warnings. Jury Awards Plaintiff Award for Injury Resulting from Exposure to Roundup In August, a jury in San Francisco awarded $289 million to Mr. Johnson, a plaintiff who was diagnosed with non-Hodgkin’s lymphoma. The plaintiff worked for decades as a groundskeeper in a school and applied Roundup to weeds and shrubs on the school property…