(Virtually) Live from San Francisco, Kelley Green Law Blog is reporting today from the Prop 65 Clearinghouse 2020 Conference …. the largest annual assemblage dedicated to the legal niche that is California’s “Proposition 65.” The Conference is always a unique event, bringing together the entirety of the Prop 65 universe: California regulators, the plaintiff’s bar, defense and corporate in-house counsel, tox and risk assessment consultants, product manufacturers, trade associations, environmental and public health NGOs…. While not quite the same crowd as the last couple of years with record attendance, the virtual gathering of over 260 participants is testament to the long reach of Prop 65 for anyone whose products may be sold in the state (i.e., almost everyone). The conference continues to be (as I remarked in my post from the 2018 conference) a great reminder, for this defense counsel, of what motivates “the other side” and an excellent opportunity to gain insights into the latest trends, current developments, and future direction of the program. Following are some of those “insights,” observations and other musings from the front lines of Prop 65:
The statute may be flawed and subject to legitimate criticism, but practical approaches and skilled practitioners can produce meaningful results.
– Bob Falk, Conference Chair
• What is the “other side’s” motivation? Some would say extracting bounties – and maybe that is true with some plaintiffs – but that glib answer obscures the very real public health motives of the more well-intentioned plaintiffs and the fact that Prop 65 has had some very notable successes in advancing those public health goals: sparking the movement to eliminate lead and cadmium in children’s products, jewelry, and a host of other items; addressing lead in drinking water; highlighting concerns about flame retardants….
• Probably the greatest achievement of Prop 65 is focusing the attention of companies and the public on the chemicals that are in the products manufactured, used, consumed and purchased every day. In this respect, Prop 65 remains perhaps the single most consequential state-level environmental/public health regulatory program in the US, with global reach.
• The flip side of that positive Prop 65 story is that those accomplishments have come at a significant cost, economically for businesses but also, and perhaps most importantly, in undermining accurate risk communication and management. Many of the Prop 65 warnings provided today address “risks” that are inconsequential or even non-existent. The sheer volume of warnings — which are everywhere in California (and, increasingly, on-line), from Target to the produce aisle to restaurants to parking garages and on and on — renders them more often to the category of “background noise” than a meaningful communication to consumers. In many cases, the warnings may as well be “background noise” as they do not actually correlate to a risk of any consequence. Miniscule amounts of a listed chemical in a product can result in a plaintiff sending a notice of violation and a demand for penalties. To avoid litigation costs, companies often simply settle and agree to post a warning … or they will do so prophylactically to avoid receiving an NOV in the first place.
If you are going to settle, settling early is almost always better than settling later.
– Bob Falk, Conference Chair
• Even those cases that technically have merit (at least in Prop 65 world), can lead to absurd results. Acrylamide in coffee is a prime example. Good studies show clearly that coffee consumption is not associated with increased cancer risk. Yet the case was allowed to proceed, until OEHHA stepped in with a regulation. Dozens of acrylamide in food cases are still pending, with new ones popping up every month. Many of the phthalate cases similarly have no basis in actual risk to consumers.
• The “over-warning” problem is recognized by plaintiffs as well … though they come at it from a little different perspective, criticizing the proliferation of unfounded warnings, particularly of the prophylactic variety.
• Wow. Acrylamide cases are on pace this year to surpass lead cases. In 2015, there were 3 acrylamide cases. This year is trending to over 300.
• Interesting debate over the recent OEHHA proposal to establish specific concentrations of acrylamide in various foods as the “lowest level feasible.” Concentrations of acrylamide at or below these levels would not require a warning. Food company and defense counsel favor the proposal as providing more certainty and a bright line target as to the acceptable level of acrylamide (rather than making individual determinations that are open to challenge by plaintiffs). On the other hand, plaintiff groups object to setting acceptable limits based on “feasibility” rather than exposure and risk. Both groups agree that the proliferation of acrylamide 60-day notices (and the consequent practice of over-warning for acrylamide) are significant problems.
• No pandemic slowdown at all in Prop 65 enforcement … in fact, enforcement is at all-time high. Over 2400 notices of violation have been filed in 2020 for all chemicals, as many as were filed in all of 2019 and well on pace to be the highest annual number ever (~2700 in 2017, and that was only with an anomalous 700 some odd cases filed by a first-time plaintiff in a couple week span).
Litigating-out Prop 65 cases is a crapshoot, with outcomes usually dependent on the predilections of the judges assigned to the case.
– Bob Falk, Conference Chair
• In terms of defending a case, don’t forget to make sure the plaintiff has made their prima facie case. We tend to jump right to the defenses and safe harbor levels, but first check that the plaintiff has properly asserted and supported their case: have they described the exposure, used the right test method, used a reputable laboratory. These details are important.
• The panel on Prop 65 and the First Amendment was really interesting … use of the First Amendment as a defense is worth watching closely as an evolving area of Prop 65 law. The glyphosate case is leading the way in further defining the contours.
• Prior consent judgments involving similar products and chemicals can be very helpful in assessing potential risks and providing guideposts for what plaintiffs may be seeking to achieve (regarding penalty amounts or reformulation levels, for example). But adherence to the reformulation standards adopted in consent judgments agreed to between other parties does not guarantee your own compliance, or that another plaintiff will accept the same standards.
And that concludes our broadcast from this year’s Conference!
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