Topic: California Proposition 65

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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

Update: OEHHA issues revised Prop 65 warning regulations

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 … Continue reading

WARNING! Beta-myrcene goes live March 27

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 … Continue reading

WARNING: OEHHA announces proposed regulations and a safe harbor level for BPA

After several false starts, Proposition 65 warnings will be required for exposures to bisphenol A (BPA) starting on May 11, 2016. Because of tremendous uncertainty regarding the amount of BPA exposure that will require a warning, as well as the ubiquitous nature of the chemical, on March 17, 2016, California’s Office of Environmental Health Hazard … Continue reading

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