Legal Blog

Proposition 65 defendants may now have juries decide enforcement actions brought against them. An appellate ruling in June held that jury trials are permitted for at least some portion of consumer products cases, including those brought for violations of California’s “right to know” law, Proposition 65. This ruling reverses a 2007 appellate court opinion. The right to jury trials in Proposition 65 lawsuits was first examined in a 2007 case, DiPirro v. Bondo Corp., 153 Cal.App.4th 150. In that case, the court concluded that there was no right to a jury trial in Proposition 65 cases. But in June of…

The new amendments to the Prop 65 warning regulations adopted by the Office of Environmental Health Hazard Assessment (OEHHA) may cause more confusion and discord between manufacturers and retailers over who is primarily responsible for complying with the regulations. The new regulations, which amend the rules for providing clear and reasonable warnings, also establish a shift in liability for providing warnings under Article 6, “Responsibility to Provide Consumer Product Exposure Warnings.” The statutory Prop 65 warning obligation itself does not distinguish among entities in the supply chain; every entity, from manufacturers to retailers, are subject to Prop 65 unless exempt.…

The legitimacy of the safe harbor limits for lead exposure created by California’s Office of Environmental Health Hazard Assessment (OEHHA) has been the subject of a contentious battle for years. The California Court of Appeals for the First District recently upheld the current 0.5 microgram per day safe harbor for lead (also known as the Maximum Acceptable Dose Level, or MADL) that was set in 1989. In doing so, the Court affirmed that the state acted permissibly in establishing that exposure level for the chemical. If the Court had revoked the safe harbor, then businesses would have been required to…

The decision by a Los Angeles County Superior Court that coffee should carry a warning that it contains a carcinogenic chemical ignited controversy about the expansiveness of Prop 65 and the value of mandated warnings that may not comport with scientific and medical evidence. This tension is especially obvious in this case, where the health effects (and benefits) of coffee have long been studied and understood. But Prop 65 lawsuits often result in mandatory warnings if the plaintiff can show evidence of even a tiny amount of a certain carcinogen, which may be interpreted as proof that the product poses…

A state appeals court ruled that certain cereals can be sold without Proposition 65 warnings – even though they may contain a listed carcinogen. In the unanimous decision, the court decided that placing warning labels on otherwise healthful foods could dissuade consumers from purchasing these products, thereby depriving them of the many health benefits associated with cereals that contain whole grains. This is not the first time a court has determined that warnings are not warranted when a product’s benefits outweigh its potential harms. These decisions suggest that the presence of a listed chemical may not presumptively necessitate a Prop…