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What’s up on Prop 65 three months after new regulations?

By now, followers of California’s Proposition 65 are well aware of the August 30, 2018, changes. In a nutshell, they are:

  • Changes to warnings that require inclusion of a specific chemical and potential harmful result of either cancer and/or birth defect
  • Required website warnings
  • Mandatory pictograph and required font size
  • The burden is shifted from retailers to manufacturers
  • Annual renewal and review.

So, what has been the impact three months into these new regulations?

1. Plaintiffs’ attorneys are looking for violations, primarily targeting the low-hanging fruit for a company’s failure to comply with the updated warnings. Many of the notices of violation have been in the food industry.

2. There has been an apparent increase in activism by the California agency responsible for the Prop 65 warning − the Office of Environmental Health Hazard Assessment (OEHHA or Agency). For example, very recently, the Agency has been cracking down on the measurement methodology used by challengers to argue that their dose levels fall below the threshold that requires a Prop 65 food warning. The challengers advanced a methodology of using average testing to assess whether a product possesses a “maximum allowable dose level.” The Agency has argued for a more restrictive arithmetic means to assess dose levels, thereby making it more difficult for manufacturers to contest allowable dose levels, and avoid the need for a Prop 65 warning.

This action by the OEHHA is despite a recent California Court of Appeal decision upholding the manufacturers’ testing as largely appropriate in assessing exposure. Interestingly, this appellate decision was de-published, thereby preventing it from being used in support of manufacturers’ challenges.

Similarly, a California appellate court ruling in favor of a cereal maker’s effort to avoid a Prop 65 warning was de-published, effectively neutering the court’s ruling for use in future challenges. In that case, the U.S. Food and Drug Administration (FDA) had written to OEHHA, stating that Prop 65 food warnings would confuse consumers.

3. So, the recent Prop 65 changes have at least served to focus the spotlight on warnings and apparent divergence between California OEHHA and federal regulations.

Recently, both the FDA and the California legislature have proposals to exempt coffee from the need for warnings against acrylamide. Despite this effort, it took an appellate court order to stay a trial from proceeding only days before the damage phase was to proceed against a multitude of coffee suppliers for damages associated with violations of Prop 65 warnings. The appellate court stay of this trial was to allow the legislative and regulatory process to proceed on the controversial need for warnings on all coffee products sold in California.

If nothing else, the August 30, 2018, revised regulations have heightened industry and consumer interest and awareness of the existence of the Prop 65 warnings. Whether this is good or bad has yet to be seen.

This blog post was published originally on November 15, 2018.