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
Companies should regularly assess their Prop 65 compliance. Products, packaging, business relationships, and the rules for compliance are constantly changing. Start 2023 off right with a review of your compliance practices to avoid costly private enforcement actions.Continue Reading Get Your Prop 65 House in Order for the New Year
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 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 group of chemicals known as PFAS (per- and poly-fluoroalkyl substances) are high on the federal regulatory agenda for 2022, as implementation of EPA’s “PFAS Strategic Roadmap” proceeds. One potential consequence will be new additions to California’s “Prop 65 List” of chemicals known to cause cancer or reproductive harm. Already, two PFAS substances are subject to Prop 65 warning and labeling requirements (PFOA and PFOS), with a third (PFNA) subject to enforcement starting in 2023. New federal Health Advisory Levels (HALs) announced on June 15, 2022 may provide the basis to add another two PFAS to the list (PFBS and GenX).Continue Reading PFAS Regulations Could Open Floodgates to Prop 65 Enforcement – Assess & Manage Your Exposure Now
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
If your products are sold online or you operate a website with sales to consumers in California, these changes will impact whether you can obtain “safe harbor” protection under Prop 65.
Over a year after adopting new regulations—which were crafted through an exhaustive 3 year rulemaking process of public workshops, public comments, and revisions to address stakeholders’ concerns—California’s OEHHA (Office of Environmental Health Hazard Assessment) issued a guidance document purporting to change the answer to the question of whether a website warning is sufficient to qualify for “safe harbor” protection or whether a separate type of warning must be provided to the consumer in addition to the website warning. OEHHA, the state entity charged with managing Prop 65, quietly changed its position on the subject and offered so-called “guidance” that imposes much more onerous obligations. If you have already assessed whether you company is in compliance and ready for the new regulations, you should consider reviewing them again.
Continue Reading Under the Radar Changes to Proposition 65 – OEHHA Issues New “Guidance” For Web Purchases (Is it an Illegal “Underground Regulation”?)
What is Prop 65?
Prop 65 is a California law that requires California consumers receive warnings regarding the presence of chemicals that cause cancer or reproductive toxicity. The law is highly technical, constantly evolving and actively enforced by the government and private enforcers.
Continue Reading WARNING: Prop 65 Has Changed – If Your Product Is Sold In California Or You Do Business In California, Pay Attention
Prop 65 Plaintiffs routinely file most Prop 65 cases in Alameda County, presumably because they believe it is a plaintiff-friendly forum. However, the California Court of Appeal recently issued a victory for Prop 65 defendants, finding that Prop 65 matters may be transferred to the venue where the cause arose. Dow Agrosciences LLC v. Superior Court (2017 1st Dist.)16 Cal.App.5th 1067.
Continue Reading Prop 65 Victory For Defendants – Defendants Are Entitled To Have Their Cases Heard In the County Where the Claim Arose