Topic: California Proposition 65

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

By Jeff Margulies (US) on September 18, 2017 Posted in California Proposition 65

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

By Jeff Margulies (US) and Will Troutman (US) on March 20, 2017 Posted in California Proposition 65

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

By Jeff Margulies (US) and Will Troutman (US) on March 12, 2017 Posted in California Proposition 65

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

By Jeff Margulies (US), Will Troutman (US) and Lauren Shoor (US) on June 21, 2016 Posted in California Proposition 65

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

The seal is broken on BPA

By Jeff Margulies (US) and Will Troutman (US) on June 15, 2016 Posted in California Proposition 65

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 … Continue reading

Update: OEHHA issues revised Prop 65 warning regulations

By Jeff Margulies (US) and Will Troutman (US) on May 23, 2016 Posted in California Proposition 65

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

By Will Troutman (US) and Andy Guo (US) on March 23, 2016 Posted in California Proposition 65

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

By Jeff Margulies (US), Will Troutman (US) and Andy Guo (US) on March 18, 2016 Posted in California Proposition 65, Recent legislation and regulations

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

Prop 65 exposure level set for DINP

By Will Troutman (US) on February 24, 2016 Posted in California Proposition 65, Recent legislation and regulations

Updating an issue we have been tracking, the California Office of Environmental Health Hazard Assessment finalized the No Significant Risk Level for DINP of 146 µg/day. The NSRL will got into effect April 1, 2016. Once in effect, this will be the level of exposure at which a warning is required for DINP. This will … Continue reading

Update: OEHHA issues revised Prop 65 warning regulations

By Will Troutman (US) and Andy Guo (US) on January 13, 2016 Posted in California Proposition 65

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

By on January 12, 2016 Posted in California Proposition 65

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

By Lauren Shoor (US) on October 28, 2015 Posted in California Proposition 65

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

By Will Troutman (US) on August 16, 2015 Posted in California Proposition 65

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

By Will Troutman (US) on May 13, 2015 Posted in California Proposition 65

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

By Jeff Margulies (US) on March 23, 2015 Posted in California Proposition 65, Recent consumer products case law

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

By Jeff Margulies (US) on March 10, 2015 Posted in California Proposition 65

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

By Will Troutman (US) on March 9, 2015 Posted in California Proposition 65

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

By Will Troutman (US) on March 6, 2015 Posted in California Proposition 65, General

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 8: Acceptable risk levels

By on February 19, 2015 Posted in California Proposition 65

Just because a chemical is listed on the Prop 65 list doesn’t mean it is illegal to have the chemical in a product without a warning. OEHHA has developed “safe harbor” levels for roughly 300 of the more than 800 chemicals on the Prop 65 list. If the product exposes an individual to a chemical at … Continue reading

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

By Will Troutman (US) on February 2, 2015 Posted in California Proposition 65

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

By Will Troutman (US) on January 26, 2015 Posted in California Proposition 65

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 6: The private plaintiffs

By on January 21, 2015 Posted in California Proposition 65

When Prop 65 passed by voter initiative in 1986, the public undoubtedly hoped it would provide greater protections to consumers by warning them of potential exposure to chemicals. It is unlikely they envisioned Prop 65 becoming what it is today: a vehicle for the generation of bounties to private plaintiffs and their attorneys. What’s a … Continue reading

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

By Will Troutman (US) on January 13, 2015 Posted in California Proposition 65

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 4: The penalties

By on December 24, 2014 Posted in California Proposition 65

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. Penalty … Continue reading