Prop 65 California

California’s Office of Environmental Health Hazard Assessment (OEHHA) has added emissions from the combustion of coal to the list of chemicals known to the State of California to cause cancer, effective August 7, 2013.

This designation is based on formal identification by the International Agency for Research on Cancer (IARC), which is an authoritative body under OEHHA’s regulations.  OEHHA has authority to designate chemicals as known carcinogens or reproductive toxicants based on the determination of designated authoritative bodies, as long as the evidence considered by the authoritative body meets specified scientific criteria.

Under Proposition 65, companies offering products for sale in California containing chemicals known to the State to cause cancer or reproductive harm must first provide consumers with a health hazard warning.  Companies will have until August 8, 2013 to provide health hazard warnings to consumers who may be exposed to emissions from the combustion of coal.

The Chanler Group represents citizen enforcers who, acting in the public interest, commence actions against businesses offering products for sale in California that contain chemicals known to cause cancer or reproductive harm without first providing the health hazard warning required by Proposition 65. Citizen enforcers bringing Proposition 65 actions in the public interest may obtain a Court Judgment imposing civil penalties, an injunction requiring reformulation of products, and/or provision of health hazard warnings. The Chanler Group has represented citizen enforcers of Proposition 65 for more than twenty years.

The U.S. Environmental Protection Agency (EPA) is seeking input to a federal panel that will explore changes to existing uses of polychlorinated biphenyls (PCBs).  PCBs are used in fluid-filled capacitors and transformers, fluorescent light ballasts, and natural gas pipelines.  They are a known carcinogen and reproductive toxicant, as well as an environmental pollutant.

PCBs were once widely used as coolants and insulating fluids, plasticizers in paints and cements, stabilizers in PVC, hydraulic fluids, sealants, and other uses.  Most of those uses have since been discontinued since PCBs were found to be toxic to human health as well as harmful to the environment, but limited use continues in closed systems such as capacitors and transformers.  The United States banned the domestic production of PCBs in 1979.

The State of California has designated PCBs as chemicals that are known to cause cancer and reproductive harm.  Under Proposition 65, companies that offer products for sale in California that contain PCBs must provide consumers with a health hazard warning.

The Chanler Group represents citizen enforcers who, acting in the public interest, commence actions against businesses offering products for sale in California that contain chemicals known to cause cancer or reproductive harm without first providing the health hazard warning required by Proposition 65. Citizen enforcers bringing Proposition 65 actions in the public interest may obtain a Court Judgment imposing civil penalties, an injunction requiring reformulation of products, and/or provision of health hazard warnings. The Chanler Group has represented citizen enforcers of Proposition 65 for more than twenty years.

A California judge issued a tentative and proposed decision this week that would hold that Dole, Gerber, Del Monte, Smucker’s, and other food makers are not required to provide California consumers with health hazard warnings regarding lead in baby food, juices, and packaged fruits made by these companies.  The tentative decision followed a month-long trial in this high-profile Proposition 65 action.  The Environmental Law Foundation brought the action, alleging that food companies violated Proposition 65 by selling products containing lead, a chemical known to the State of California to cause cancer and reproductive harm, without first providing a health hazard warning.  The judge will allow the parties on each side of the case to file objections to the tentative decision, and may also hold a hearing for additional argument.

The products involved included baby foods containing carrots, peaches, pears, and sweet potatoes, as well as grape juice, packaged pears and peaches, and fruit cocktail. 

The defendants argued that the lead levels are low enough that a Proposition 65 warning is not required, that the lead was naturally occurring, and that the federal Food and Drug Administration’s food safety programs preempts Proposition 65, a state law.  While the judge disagreed on preemption and stated that the defense did not prove the lead was naturally occurring, he did concede that the lead was found to be below “safe harbor” levels.  “Safe harbor” levels are adopted by the State, and provide that if a defendant can prove its products expose users to a concentration of chemical that is below the safe harbor level, then it is exempt from the warning requirement under Proposition 65.

According to tests conducted by the defendants, the average user who consumed their products was exposed to less than .5 micrograms per day of lead, averaged over 14 days.  The Maximum Allowable Dose Level for lead, as set by California’s Office of Environmental Health Hazard Assessment, is .5 micrograms per day, for exposures that may result in reproductive harm.   The “no significant risk level” for lead established by OEHHA is 15 micrograms per day, for exposures that may result in cancer.  Because the judge tentatively found that defendants established that exposures to lead from their products were within the safe harbor limits for lead, the judge tentatively ruled that defendants exempt from the warning requirements of Proposition 65.

The Environmental Law Foundation is expected to object to this tentative decision. The defendants may object as well, regarding the tentative rulings that Proposition  65 is not preempted by federal law, and that lead is not naturally occurring.  There is a possibility that the judge may change his mind.

The Chanler Group represents citizen enforcers who, acting in the public interest, commence actions against businesses offering products for sale in California that contain chemicals known to cause cancer or reproductive harm without first providing the health hazard warning required by Proposition 65. Citizen enforcers bringing Proposition 65 actions in the public interest may obtain a Court Judgment imposing civil penalties, an injunction requiring reformulation of products, and/or provision of health hazard warnings. The Chanler Group has represented citizen enforcers of Proposition 65 for more than twenty years.