Another Major Earthquake: California Creates Big Fissures in Proposition 65 Regulations – Proposals Could Shatter Defenses

Morrison & Foerster LLP

In the midst of making Proposition 65’s longstanding warning regulations far more onerous, and vexatious litigation far more likely, California’s Office of Environmental Health Hazard Assessment (OEHHA) has unveiled still more new proposals that would undermine some of the few defenses available under the Act. The proposals include a potential change to OEHHA’s longstanding Proposition 65 “safe harbor” level for lead and several major changes in the way the extent of exposure is calculated and how the “naturally occurring” exemption for foods is determined.

A common thread in many of these proposals is the plaintiff bar’s opposition to enforcement of Proposition 65 being based upon the science proven up in our most recent Proposition 65 victory in the courts. That suit, Environmental Law Foundation v. Beech-Nut Corporation, et al., 325 Cal.App.4th 307 (2015), sought to require birth defect warnings due to trace levels of lead in fruit juice, packaged fruit, and fruit- and vegetable-containing baby foods. Both the trial court and a unanimous Court of Appeal found in favor of our clients, holding that no warnings were required. The California Supreme Court recently denied review. Among other things, the trial and appellate courts found that it was scientifically appropriate to average contaminant levels in multiple product samples even when drawn from multiple lots. The courts also found that it was scientifically appropriate to average levels of product use over multiple days to estimate exposure levels.

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