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Whitney Jones Roy is a litigation partner in firm's Los Angeles office.

2023 was a busy year for Prop 65 with the highest number of Notices of Violation since its inception. The California law requires consumers receive warnings regarding the presence of chemicals that cause cancer or reproductive toxicity. Prop 65 applies to an ever growing list of chemicals and thus impacts a wide variety of businesses in California. Below are a few trends and developments seen over 2023.Continue Reading Proposition 65: 2023 in Review

Under California’s Proposition 65 (“Prop 65”), businesses are required to give “clear and reasonable warnings” to consumers regarding potential chemical exposure if their product contains a chemical “known to the state to cause cancer.” In the recent decision Nat’l Association of Wheat Growers, et al. v. Bonta, et al., the Ninth Circuit Court of Appeal explored businesses’ First Amendment rights and the government’s ability to compel commercial speech. The Ninth Circuit found that the State of California cannot compel businesses to provide a Prop 65 warning for glyphosate, the most commonly used herbicide in the world. Continue Reading The Intersection of Prop 65 and Free Speech: A Recent Win for Businesses

California has approved a new, alternative “Safe Harbor” warning label for foods containing acrylamide, a naturally-occurring byproduct that occurs during high-heat cooking. Whether the new regulation moots the California Chamber of Commerce’s (“CalChamber”) ongoing legal battle against Proposition 65 (“Prop 65”) warning labels[1] remains to be seen.Continue Reading California’s Newly Adopted “Safe Harbor” Warning Label for Acrylamide In Foods Turns Up the Heat In Ongoing First Amendment Challenge to Proposition 65

California Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Safety Code § 25249.5 et seq.) (“Prop 65”) is a California law that prohibits any person in the course of doing business from “knowingly and intentionally expos[ing]” individuals to listed carcinogens and reproductive toxins without adequate warning. Recently, in Environmental Health Advocates, Inc. v. Sream, Inc., 83 Cal. App. 5th 721 (2022), the First District Court of Appeal had the opportunity to interpret the word “expose” as used in Health & Safety Code § 25249.6, concluding that possible indirect contact with a listed Prop 65 chemical, depending on how a consumer chooses to use a product, is insufficient to constitute a cause of action under Prop 65. Continue Reading Up In Smoke – CA Court of Appeal Dismisses Prop 65 Case Against Water Pipe Manufacturer Narrowly Construing The Term “Expose”

The Office of Environmental Health Hazard Assessment (“OEHHA”) recently proposed a regulation that would provide more certainty to businesses regarding the Proposition 65 (“Prop 65”) warning requirements for cooked foods.  The proposed regulation is intended to incentivize businesses to lower the concentration levels in foods, encourage consistency and predictability, and ensure that warnings will be given for the foods causing the highest levels of exposure.
Continue Reading New Proposed Regulation Provides More Guidance and Some Relief on Prop 65 Warning Requirements for Heat Processed Foods and Acrylamide

Many of us think of coffee as a morning essential, however, there has been a long running debate between California regulators, courts, business, and consumer advocates regarding whether coffee must have a Proposition 65 (“Prop 65”) warning for cancer.  The debate stems from the fact that roasted coffee beans, and coffee brewed from those beans, contain acrylamide – a chemical of concern under Prop 65 because of potential cancer risks.  This article discusses the opinions of various research groups regarding the noncarcinogenic nature of acrylamide, as well as a recent lawsuit initiated by the California Chamber of Commerce against the California Attorney General to end the need to warn for acrylamide.
Continue Reading Prop 65 Warnings and Acrylamide in Food – Can I Still Have My Coffee and Drink it Too?

The California Office of Environmental Health Hazard Assessment (OEHHA) recently adopted amendments to California Code of Regulations, section 25600.2 – the section titled “Responsibility to Provide Consumer Product Exposure Warnings.”  These amendments provide more specific guidance for manufacturers, retailers and other businesses in the chain of commerce on how to satisfy their responsibilities to provide consumer product exposure warnings for chemicals listed under Proposition 65. The amendments become effective on April 1, 2020.
Continue Reading Proposition 65: California Clarifies Responsibilities To Warn Amongst Manufacturers, Distributors and Retailers

Makah Indian Tribe, et al. v. Quileute Indian Tribe et al., 813 F.3d 1157 (9th Cir. 2017).

Defying the universal notion that whales and seals are, in fact, mammals, the Ninth Circuit recently affirmed in part, and reversed in part, the Western District Court of Washington’s judgment determining that such species qualify as fish in limited circumstances relating to tribal fishing rights in western Washington. Id. at 1159. While the direct determination that the use of the word “fish” may occasionally include some marine mammals may not be universally enlightening, this case painstakingly details the rules to be utilized when interpreting sovereign treaties—a tool helpful to almost any jurisdiction. (The opinion also quotes from the television show “Seinfeld,” validating George Costanza’s proclamation that whales are fish.)
Continue Reading Ninth Circuit Determines That George Costanza Was Right!—In Limited Circumstances, Whales And Seals Are Fish (Not Mammals)

TDY Holdings v. United States, et al., 872 F.3d 1004 (9th Cir. 2017).

TDY brought suit for contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against the U.S. government relating to environmental contamination at TDY’s manufacturing plant. The district court granted judgment in favor of the government after a 12-day bench trial and allocated 100 percent of past and future CERCLA costs to TDY. On appeal, the Ninth Circuit held that the district court sharply deviated from the two most “on point” decisions regarding allocation of cleanup costs between military contractors and the U.S. government when it determined the cases were not comparable, clarified the applicability of those cases, and remanded the case to reconsider the appropriate allocation of cleanup costs between TDY and the U.S. government.
Continue Reading Ninth Circuit Finds District Court Sharply Deviated from Existing Authority on CERCLA Cleanup Costs Between Military Contractor and U.S. Government When it Allocated 100 Percent of Liability to Military Contractor

Sturgeon v. Frost, et al., 872 F.3d 927 (9th Cir. 2017).

In September 2011, moose hunter John Sturgeon brought an action against the National Park Service (“Park Service”), alleging it inappropriately banned him from using a hovercraft to hunt moose on the Nation River in the Yukon-Charley Rivers National Preserve (“National Preserve”). Id. at 929. On remand from the Supreme Court, the decision analyzes which entity is permitted to decide this matter after the Supreme Court rejected an earlier circuit decision supporting the ban. The court’s ruling affirms congressional intent to permit Park Services authority to manage navigable waters in Alaska’s national parks, especially those parks meant to preserve wild rivers, and describes the balance between state and federal jurisdiction.
Continue Reading Ninth Circuit Holds National Park Service Has the Authority to Regulate Navigable Waters in Alaska’s National Parks and Prohibit the Use of Hovercraft (Again)