Topic: California Proposition 65

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Update: OEHHA issues revised Prop 65 warning regulations

Continuing the saga of revisions to the Prop 65 regulations, OEHHA has repealed its January 2015 clear and reasonable warning proposed rulemaking and replaced it with a new proposed regulation. The new proposed rulemaking addresses many concerns raised by the business community, either addressing the issue or explaining why OEHHA will not change it.  A … Continue reading

Proposition 65: the disconnect between rates of exposure and chemical composition

The difference between exposure rate and chemical composition is one of the most common issues that comes up when discussing Proposition 65. While many people get that Prop 65 requires warnings for significant chemical exposures, there is a common misconception that Prop 65 prohibits products from even containing certain amounts of chemicals – lead, cadmium, and phthalates … Continue reading

California Attorney General seeks to change Proposition 65 settlement landscape

Continuing a flurry of activity this year to reform Proposition 65 in California, the Office of the Attorney General is proposing amendments to the Proposition 65 regulations that would affect settlement terms, penalty amounts, and attorneys’ fees in civil actions filed by private persons in the public interest. For a more detailed discussion of Proposition … Continue reading

California to open rulemaking into Prop 65 lead levels

In response to a petition from the Center for Environmental, the California Office of Environmental Health Hazard Assessment will initiate a rulemaking to update the current 0.5 µg/day safe harbor level for lead. The implications are huge, as years of Prop 65 settlements over lead have been premised on the existing safe harbor level. CEH argues … Continue reading

California puts BPA back on Prop 65 list

Effective May 11, 2015, California’s Office of Environmental Health Hazard Assessment has put bisphenol A, or BPA, back on the Proposition 65 list. This most recent listing is through the “state’s qualified expert” listing mechanism, as the OEHHA Developmental and Reproductive Toxicant Identification Committee concluded that scientifically valid testing according to generally accepted principles clearly … Continue reading

Appellate ruling signals potential sea change in Prop 65 enforcement for reproductive toxins

A recent decision from the California Court of Appeal, First Appellate District, in Environmental Law Foundation v. Beech-Nut Corporation applied the familiar substantial evidence standard to uphold a trial court judgment in favor of defendants that has enormous implications for Prop 65 enforcement cases. Beech-Nut Trial Court Holding Beech-Nut involved claims that users were exposed … Continue reading

The mysterious world of Prop 65, part 10: Settlements – the good, the bad, the ugly and the process

Virtually all Proposition 65 enforcement actions—whether brought by public prosecutors or private enforcers—resolve by a settlement agreement. In this post, we will discuss the features and mechanics of a settlement. We will focus on private enforcement actions, which make up well over 90 percent of all settlements. The Good Typically, a settlement will result in … Continue reading

Proposition 65 Listed Chemical update

Here is the latest roundup of Proposition 65 chemical issues looming on the horizon for consumer products: Listed in 2014 (warnings required in 2015): N-Nitrosomethyl-n-alkylamines, Various CAS Nos., can be found in personal care products and household cleaning products due to reaction of ingredients (i.e., NMAs are not intentionally added to products), December 26, 2014 … Continue reading

The mysterious world of Prop 65, part 9: The naturally occurring exemption

A hot topic of late is the so-called Proposition 65 “naturally occurring” exemption.  This is due largely to the addition of pulegone to the Prop 65 list in April 2014.  Pulegone is a naturally occurring chemical found in many essential oils, including peppermint oil. With warnings required on products containing pulegone that cause significant exposures … Continue reading

The mysterious world of Prop 65, part 7: Knowing and intentional

Because so many companies sued for alleged Proposition 65 violations seek to quickly settle claims against them, one might think Prop 65 is a strict liability statute. This is incorrect. Health & Safety Code § 25249.6 requires that an exposure without a warning be knowing and intentional: No person in the course of doing business shall knowingly … Continue reading

Update: OEHHA issues new proposed Prop 65 warning regulations

Updating our prior post, California’s Office of Environmental Health Hazard Assessment issued new proposed regulations on clear and reasonable warnings for Proposition 65. This proposed regulation follows March and September drafts that were subject to public and stakeholder input. The current draft is similar in substance to the September iteration, leaving unchanged many of the … Continue reading

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

The infamous “60-day Notice” is the smoke before the Prop 65 fire. A 60-day Notice is often followed by a settlement demand, and then a complaint if you don’t settle the claims within the notice period. The 60-day notice Prop 65 authorizes public and private enforcement. Public enforcement is straightforward – the California Attorney general, … Continue reading

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

Prop 65 plainly directs that any person in the course of doing business (meaning any private company that employs 10 or more persons) must provide a “clear and reasonable warning” before exposing individuals to listed carcinogens and reproductive toxins. When it first adopted regulations implementing the warning requirement in 1989, the Lead Agency (now OEHHA) … Continue reading

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

To determine whether Prop 65 impacts your company, the starting point is the Prop 65 chemical list. Knowing the listed chemicals and keeping up to date on new additions could mean the difference between facing a lawsuit or avoiding thousands of dollars in legal fees and settlement payments through advanced compliance. Adding chemicals to the … Continue reading

The mysterious world of California’s Proposition 65: A miniseries

If you are reading this blog, at some point, you have probably encountered what many consider to be the most vexing of all of California’s laws: Proposition 65. While Proposition 65 appears relatively simple and straightforward―“No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to … Continue reading

Proposition 65: OEHHA’S proposed revisions to warning regulations

In March 2014, OEHHA began the rulemaking process to amend the Clear and Reasonable Warning requirements for California’s Proposition 65. The proposed changes caused a great deal of concern for manufacturers, distributors, and retailers doing business in California. On September 23, 2014, OEHHA circulated a revised draft to some of the stakeholders. While the proposed … Continue reading

WARNING! This Post Contains Information on DINP and Proposition 65 in the State of California That May Help You Avoid a Lawsuit

On December 20, 2013, the Office of Environmental Health Hazard Assessment added the phthalate DINP to the California Proposition 65 chemical list. Under Proposition 65, products containing newly listed chemicals require a warning starting 12 months after the listing. For DINP, this is December 20, 2014. Given recent experience with other newly listed chemicals, such … Continue reading

OEHHA signals reforms to Proposition 65 regulations

In the wake of the Governor Brown’s failed effort to get substantive Proposition 65 reform, the California Office of Environmental Health Hazard Assert (OEHHA) signaled that it is still interested in reforming the law by revising the regulations under its jurisdiction. On September 16, 2014, OEHHA issued a request for public comment on changes it is … Continue reading

Proposition 65 listed chemical update

Here is the latest roundup of Proposition 65 chemical issues looming on the horizon for consumer products: Newly Listed Chemicals: N,N-Dimethyl-p-Toluidine, CAS No. 99-97-8, component of artificial fingernail preparations, intermediate in dye and pesticide synthesis, May 2, 2014 Pulegone, CAS No. 89-82-7, flavoring for food, drinks, dental products; fragrance for perfumes and aromatherapy; component of … Continue reading