Legal Blog

On November 27, 2015, the California Office of Environmental Health Hazard Assessment released a new Proposition 65 warning proposal and formally withdrew its January 16, 2015 proposal.  OEHHA has scheduled a public meeting on the new proposal for January 13, 2016.  Public comments on the new proposal must be submitted no later than January 22, 2016. Like the January 2015 proposal, the November proposal describes safe harbor Proposition 65 warnings.  The current proposal retains key elements from the earlier version. For example: Safe harbor warnings other than for food will require the use of a symbol (an exclamation point in…

Wells Fargo Insurance has announced a Proposition 65 liability insurance program, for Proposition 65 claims involving the six phthalate chemicals on the Proposition 65 list: Diethyl hexyl phthalate (DEHP) Diisononyl phthalate (DINP) Dibutyl phthalate (DBP) Benzyl butyl phthalate (BBP) Di-n-hexyl phthalate (DnHP) Diisodecyl phthalate (DIDP)   These phthalates, used as plasticizers in a wide variety of products, have been primary targets for hundreds of Proposition 65 enforcement actions.  Insurers typically refuse to provide coverage for Proposition 65 claims under ordinary business liability policies (but businesses nevertheless should always consider tendering such claims to their carriers). Previous insurance products for Proposition 65 claims involving dietary supplements…

On October 2, 2015, the California Department of Toxic Substances Control published a Notice of Proposed Amendment to amend the Candidate Chemicals List under the Safer Consumer Products Regulations. Although largely a proposal to "fix" prior inaccuracies and update the list, the proposed amendment also will result in the addition of three new chemicals to DTSC's program:  (1) 4-(1,1,3,3,-tetramethylbutyl)phenol, ethoxylated; (2) 4-nonylphenol, branched and linear; and (3) 4-nonylphenol, branched and linear, ethoxylated.  DTSC will hold a public hearing in Sacramento on November 16, 2015.  The deadline for written public comments also is November 16, 2015. California's Green Chemistry laws, AB…

On September 25, 2015, the California Attorney General published proposed regulations and guidelines governing Proposition 65 settlements. Largely focusing on the allocation of payments required in Proposition 65 settlements, the proposed regulations aim to increase transparency and accountability in the settlement of private enforcement actions, and to curb abusive private enforcement. The deadline for public comment is November 9, 2015. Although the Attorney General is the primary public enforcer of Proposition 65, that office also exercises a supervisory role, authorized by statute, in reviewing private enforcement activity. The Attorney General is authorized to, and frequently does, object to settlements and…

On September 24, 2015, the California Department of Toxic Substances Control released its draft Alternatives Analysis Guide under the Safer Consumer Products (SCP) Regulations. The 106-page document is intended to provide members of the regulated community with guidance on how to undertake a Stage 1 Alternatives Analysis under DTSC's new program. DTSC is accepting comments on the draft, and comments may be submitted electronically. DTSC also is holding two webinars on the draft guide, on October 7, 2015 and October 21, 2015. The SCP Regulations, promulgated in October 2013, establish a four-element regulatory program intended to reduce toxic chemicals in…