The Office of Environmental Health Hazard Assessment (OEHHA) is holding a public hearing on July 6, 2017 (rescheduled from June 19, 2017) from 10 am to 12 pm in response to a petition from the Center for Environmental Health (CEH) requesting OEHHA to “commence the regulatory process to issue regulations pursuant to Health & Safety Code §110552 setting a ‘naturally occurring’ lead level in candy containing chili and tamarind.” The hearing will be held in the Coastal Hearing Room at Cal/EPA’s headquarters located at 1001 I Street in Sacramento and also will be broadcast online. The deadline for written comments on the petition is July 3, 2017 and comments may be submitted electronically, per OEHHA’s notice.
Health & Safety Code §110552 is part of the Sherman Food, Drug, and Cosmetic Law (Health & Safety Code sections 106500, et seq.) and requires OEHHA to establish the “naturally occurring” lead level in candy containing chili and tamarind by regulations adopted following consultation with the Department of Health Services and the Attorney General. The statute requires such lead level to be that amount unavoidable by good agriculture, manufacturing, procurement and other feasible practices. The statute also provides that until OEHHA establishes the level, “the Attorney General’s written determination, if any, including any determination set forth in a consent judgment entered into by the Attorney General, of the naturally occurring level of lead in candy or in a candy ingredient shall be binding for purposes of this section.”
Put another way, lead levels established by the Attorney General in candy-related Proposition 65 consent judgments are deemed to be the naturally occurring lead level under this statute. As a practical matter, this means that the 100 parts per billion lead (ppb) standard, established in People v. Alpro Alimento Proteinicos (Los Angeles Super. Ct. Case No. BC318207), is the current standard.
According to CEH’s Petition, OEHHA was required to promulgate the “naturally occurring” lead level in 2006. In the meantime, CEH asserts, more recent Proposition 65 consent judgments involving other food products have established lead levels “far lower” than 100 ppb. In any event, CEH argues, the Alpro Alimento standard was never intended to establish a “naturally occurring” lead level, only a level above which a Proposition 65 warning would be required. According to CEH, “OEHHA’s failure to comply with the law requiring issuance of such regulations is unnecessarily exposing California residents, including children, to lead, a stunningly toxic heavy metal.”
This article was researched and written by Cecilia Grimaldi. Ms. Grimaldi is a research assistant at Grimaldi Law Offices where she drafts summaries of regulatory developments pertaining to chemical manufacturing and use. She is currently a third year at Cal Poly, San Luis Obispo, though she is originally from San Francisco. She will be graduating this spring with a degree in English and Psychology.
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