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, or whether the amount of exposure to average users was below the no significant risk level. Rather, the court concluded that the warnings were prohibited under the US Constitution’s First Amendment as compelled government speech. This decision is important, as it is the first final … Continue Reading
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 from a federal court has found that despite Prop 65’s low bar, plaintiffs in a consumer class action lawsuit cannot bootstrap an alleged Proposition 65 violation into the basis for California consumer protection claims, at least not without first complying with Prop 65’s pre-suit … Continue Reading
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 certificate of merit discoverable in litigation (to the extent not otherwise privileged).
- The 2016 revised warning regulation created the “five business day exemption” for retailers. The five business day period is triggered by “actual knowledge,” which presumably is established by the 60-day
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 to warn for retailers in certain circumstances under the warning regulations. The changes become effective on April 1, 2o20.
The 2016 amended warning regulation
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 cost me? The short answer: a lot. The potential for high civil penalties is daunting to many companies, a fact of which private litigants are well aware and bank on to incentivize quick settlements.
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 transmission.
This post focuses on the content of the warning itself; a detailed discussion of supplier and retailer responsibility can be found here. For a look at the impact of the new regulations six months after passage, click here… Continue Reading
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
- Nickel (soluble compounds)
- Perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS)
- TBBPA (tetrabromobisphenol A)
- Tetrachlorvinphos, and
- Vinylidene chloride (1, 1-Dichloroethylene).
With the exception of PCBTF (added on June 28, 2019) and Nickel (added on October 26, 2018), all of the aforementioned chemicals have all been added to the list at least … Continue Reading
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 product warnings.
To the average person in California, if they know anything about Proposition 65 at all, it is usually because they have a seen a warning sign in a bar or at a store. In most instances, after seeing the sign, they likely kept … Continue Reading
Nearly five years ago, we started publishing our first serial, The mysterious world of Prop 65. Although we knew we struck gold with the brilliant series title, we could not have contemplated that these would become our most visited, read, and referred to posts.
Since 2014, a lot has changed in the Proposition 65 landscape, ranging from the revised safe harbor warning regulations in 2018 to the cast of characters comprising the Prop 65 plaintiff’s bar. We thought it high time to provide an updated edition. Over the next few weeks, we will be posting The mysterious world … Continue Reading
On 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 15, 2019 as known to the state to cause cancer, that are created by and inherent in the processes of roasting coffee beans or brewing coffee do not pose a significant risk of cancer.
While the adoption of the regulation would seem to end the … Continue Reading
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 isn’t clear.… Continue Reading
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 allocate responsibility for warnings among suppliers and retailers; and (2) they make several substantive changes to the content and methods of transmission for “safe harbor” warnings.… Continue Reading
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
Under the existing Proposition 65 regulations, any party in the supply chain could be held liable for failure to provide a warning. The revised regulations allocate responsibility for warnings primarily to manufacturers, distributors, and importers (together, suppliers), with retailers responsible in specified circumstances.
Suppliers … Continue Reading
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 injunction to be heard on July 31, despite widespread criticism of the basis of the court’s ruling (see, e.g., articles from NPR, CBS News, Self Magazine, and WebMD), it appeared that Prop 65 warnings for coffee would soon proliferate in … Continue Reading
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 are required to provide cancer warnings for exposure to acrylamide in coffee. Acrylamide is listed as a carcinogen based on laboratory animal studies, but has not been proven to cause cancer in humans. Acrylamide is not added to coffee, but is formed in a complex … Continue Reading
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 in leather tanning, production of plastics and acrylic fibers, and manufacture of adhesives, synthetic leathers, and surface coatings.
- 2-Mercaptobenzothiazole (MBT), CAS No. 149-30-4, used in vulcanization of rubber and dopamine beta-hydroxylase inhibition, and used for antibacterial and antifungal purposes.
- Tetrabromobisphenol A (TBBPA),
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 the certificate of merit and determined that there is no merit to an action;
- Make the basis for the certificate of merit discoverable in litigation, to the extent that the information is relevant to the subject matter of the action and not subject to
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 pre-suit notice alleging a violation of Prop 65’s warning requirement must include with the notice a “certificate of merit.” The certificate must recite that the enforcer:
… Continue Reading
has consulted with one or more persons with relevant and appropriate experience or expertise who has reviewed facts, studies,
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, it’s our belief that these settlements will not be particularly useful in guiding companies who seek to avoid Proposition 65 warnings for polycarbonate, whether in drinkware or other products.
The settlements require either reformulation to 1,000 parts per million … Continue Reading
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 the California Attorney General Proposition 65 website. Both settlements apply to polycarbonate drinkware and provide an option for a 1,000 ppm reformulation standard (using the test method ATS 367 Rev) or a standard Proposition 65 warning for reproductive toxins.
We … Continue Reading
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 1, 2016.
Once in effect, this will be the rate of exposure at which a warning will be required for dermal exposure to BPA.
After significant industry speculation over what consumer products would be the first targets for Proposition 65 BPA enforcement, the Center for Environmental Health issued the first BPA 60-day notice of violation on June 14, 2016, a little over a month after BPA’s listing anniversary date. The notice is not for canned food; it is not for sunglasses. The inaugural notice is for a thermal-printed receipt provided to the Center for Environmental Health after (presumably) purchasing food at a Del Taco.
Thermal printing is widely used to print receipts because these printers are both fast and do not require ink. These … Continue Reading
On May 16, OEHHA issued its fifth iteration of the revised Proposition 65 warning regulations. As these changes largely seek to clarify existing language in the proposed regulations since the prior revision in March, we have a pretty good idea of what the final regulations will look like (although OEHHA does reserve the right to make additional changes).
Once the final regulatory text is published, OEHHA will also publish its “Final Statement of Reasons,” which responds to public comments on the initial proposed regulation and interim revisions and explains changes that OEHHA did or did not make in response to … Continue Reading
On March 27, 2015, the Office of Environmental Health Hazard Assessment added beta-myrcene to the California Proposition 65 chemical list. Under Proposition 65, products containing newly listed chemicals require a warning starting 12 months after the listing. As a result, warnings for significant exposures will be required as of March 27, 2016.
Uses for beta-myrcene
Beta-myrcene, also known as myrcene or 7-Methyl-3-methyleneocta-1,6-diene, is a substance widely found in nature, and is used as an intermediate in the production of aroma and flavor chemicals. It is used in foods and as a scenting agent in fragrances, cosmetics, soaps and other cleaning … Continue Reading