Topic: California Proposition 65

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California District Court grants preliminary injunction barring Prop 65 acrylamide lawsuits

Prop 65 claims for alleged exposure to acrylamide in food are all too common. In the first three months of 2021 alone there have been 109 acrylamide notices issued. Acrylamide is not a chemical that is intentionally added to food, but rather forms in many types of foods when cooked at high temperatures, including chips, … Continue reading

California moves to restrict the use of short-form Prop 65 warnings

On January 8, 2021, the California Office of Environmental Health Hazard Assessment (OEHHA) issued a notice of proposed rulemaking significantly limiting the use of the short-form warning as a safe harbor. The proposed regulation makes the following changes: Limiting the use of the short-form warning to products with 5 square inches or less of label … Continue reading

Coffee roasters and retailers defeat Proposition 65 lawsuit

We previously wrote about a regulation issued last year by the California Office of Environmental Health Hazard Assessment (OEHHA) exempting chemicals in coffee from Proposition 65’s warning requirement.  The question then was what effect the new regulation would have on the long-pending industry-wide enforcement action brought by the Council for Education and Research on Toxics … Continue reading

Federal court says Prop 65 warnings for glyphosate violate the First Amendment

On June 22, 2020, Judge William Shubb of the US District Court for the Eastern District of California entered an order prohibiting the State of California from requiring Prop 65 warnings for glyphosate, the active ingredient in the herbicide Roundup®. The decision was not based on whether glyphosate had been improperly listed under Prop 65, … Continue reading

Court tosses consumer class action based on alleged Prop 65 violation

As a California appellate court once stated, and many businesses find out to their dismay, Proposition 65’s enforcement procedures make “the instigation of Proposition 65 litigation easy—and almost absurdly easy at the pleading stage and pretrial stages.” Consumer Defense Group v. Rental Housing Industry Members, 137 Cal. App. 4th 1185, 1215 (2006). A recent ruling … Continue reading

The mysterious world of Prop 65 reloaded, part 5: the notice

Editor’s Note: Since our original post, there have been two significant changes: In 2017, the California Legislature amended the certificate of merit requirements. The amendments require the Attorney General to notify a private enforcer and the alleged violator if the AG finds no merit to an action.  The amendments also make the basis for the … Continue reading

California modifies Prop 65 warning regulations

The California Office of Environmental Health Hazard Assessment (OEHHA) has adopted amendments to its 2016 Proposition 65 warning regulations. These amendments address issues that arose regarding how manufacturers and distributors communicate with retailers and other downstream businesses about the need to provide warnings. The amendments also revise the definition of the “actual knowledge” that creates a duty … Continue reading

The mysterious world of Prop 65 reloaded, part 4: the penalties

Editor’s Note: Not much has changed since our original post regarding civil penalties. Unfortunately, Prop 65 enforcers are still out attempting to collect vast amounts of civil penalties (and attorney’s fees) in private enforcement actions. The obvious concern for many companies facing potential exposure for a Prop 65 violation is what is this going to … Continue reading

The mysterious world of Prop 65 reloaded, part 3: the warning

Editor’s Note: On August 30, 2018, OEHHA’s amendments to the Proposition 65 clear and reasonable warning regulations became effective. The amendments bring two major changes: the first ever allocation of responsibility for warnings, which places the primary responsibility on upstream entities rather than retailers; and significant changes to the “safe harbor” warning regulation, including warning content and methods of … Continue reading

The mysterious world of Prop 65 reloaded, part 2: the list

Editor’s Note: The way that chemicals get added to the list has not changed; however, the list of Prop 65 chemicals has. Here are some recently added chemicals that may be found in consumer products: Aloe Vera (non-decolorized whole leaf extract) Goldenseal root powder Malathion beta-Myrcene Nickel (soluble compounds) Perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate … Continue reading

The mysterious world of Prop 65 reloaded, part 1: The law

Editor’s Note: This post has been updated to reflect 2018 revisions to the Prop 65 regulations, which for the first time allocated responsibility for compliance within the supply chain. These revisions place the primary responsibility for compliance on manufacturers, distributors, and importers, while limiting the circumstances in which retail sellers are responsible for providing consumer … Continue reading

What now? California finalizes Prop 65 exemption for coffee

What now? California finalizes Prop 65 exemption for coffeeOn June 3, 2019, the California Office of Administrative Law approved a regulation adopted by the California Environmental Office of Health Hazard Assessment (OEHHA) exempting chemicals in coffee from Prop 65’s warning requirement. The regulation, which has an effective date of October 1, 2019, provides: Exposures to chemicals in coffee, listed on or before March … Continue reading

Six months: how the new Prop 65 regulations have impacted retailer enforcement

It’s been about six months since the new Prop 65 regulations allocated the primary responsibility for providing warnings to suppliers, manufacturers, distributors, and importers, while limiting retailers’ responsibility to limited, specified circumstances. Many wondered what impact these new regulations would have on the enforcement of Prop 65 against retailers. Six months in, the answer still … Continue reading

Proposition 65 survival guide

At long last, it’s here—OEHHA’s long-awaited amendments to the Proposition 65 “clear and reasonable warning” regulations become mandatory for products manufactured on and after August 30, 2018. As we are sure you’ve probably heard ad nauseam by now, the revisions make two key changes to the Proposition 65 regulations: (1) for the first time, they … Continue reading

California Proposition 65 amended warning regulations

On August 30, 2016, OEHHA’s long-awaited amendments to the Proposition 65 clear and reasonable warning regulations became final.  The amendments bring two major changes: (1) an allocation of responsibility for providing warnings between retailers and suppliers; and (2) revisions to the safe harbor warning requirements, including warning content and methods of transmission. Allocation of responsibility … Continue reading

California proposes to exempt coffee from Prop 65 warning requirement

On April 12, 2018, we wrote about the decision in Council for Research on Education in Toxics v. Starbucks, in which a California Superior Court judge rejected the evidence presented by coffee roasters and retailers to demonstrate that exposures to acrylamide in coffee were exempt from Proposition 65’s warning requirement. With a motion for permanent … Continue reading

LA judge rules that coffee requires a Proposition 65 warning for acrylamide

On March 28, 2018, Superior Court Judge Elihu Berle issued a proposed statement of decision that would require coffee roasters and retailers to provide Proposition 65 cancer warnings for coffee sold in California. What the case is about Plaintiff Council for Research and Education on Toxics (CERT) asserts that approximately 70 coffee roasters and retailers … Continue reading

Proposition 65 Listed Chemical update

Here is the latest roundup of Proposition 65 chemical issues looming on the horizon for consumer products. Reminder: warnings are required 12 months after the listing effective date, assuming that there is an exposure, and the exposure exceeds the level that requires a warning: Listed effective Oct. 27, 2017: N,N-Dimethylformamide (DMF), CAS No. 68-12-2, used … Continue reading

California Governor signs Proposition 65 amendment

Updating our prior post, California Governor Jerry Brown has signed the Proposition 65 amendment bill. As of January 1, 2018, Proposition 65’s certificate of merit requirements will be amended to: Require the Attorney General to send a letter to the private enforcer and the recipients of the 60-day notice when the Attorney General has reviewed … Continue reading

California legislature seeks to clarify Prop 65 certificate of merit discovery rules

The California Legislature has done something it’s found exceedingly difficult to do since Proposition 65’s adoption by ballot initiative 31 years ago: amend the law. For only the third time since 1986, the Legislature has made substantive revisions to Prop 65 that focus on the private enforcement mechanism. Since 2001, private enforcers who serve a … Continue reading

Shedding some light on BPA settlements

In our post last week, we outlined the terms of the first two published Proposition 65 BPA settlements, for polycarbonate drinkware. We explained that we don’t know if these settlement terms would become a standard for future settlements and compliance because of the nature of the settlements – out-of-court, with the same plaintiff and Proposition 65 plaintiffs firm. After some consideration, … Continue reading

First Proposition 65 BPA settlements hit

After months of speculation about the first BPA settlement reformulation standards, we have our first clue: 1,000 parts per million with an option to warn. Serial polycarbonate drinking glass user Anthony Ferreiro resolved his allegations of BPA exposure without a warning from polycarbonate drinkware through two out-of-court settlements (1) (2), which recently became available on … Continue reading

Prop 65 safe harbor level for BPA finalized

Following the California Office of Environmental Health Hazard Assessment’s proposed regulations for temporary point-of-sale warnings for BPA exposures from canned and bottled foods and beverages, this week OEHHA finalized the Maximum Allowable Dose Level for BPA of 3 micrograms per day from dermal exposure from solid materials. The MADL will go into effect on October … Continue reading
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