Latest News and Perspectives on California Prop 65
The latest news and perspectives on California’s Proposition 65 (Prop 65) track the passage of the newly-amended Clear and Reasonable Warnings regulations under Prop 65, which took effect on August 30, 2018. Significantly, plaintiffs have started to target companies whom they believe to not be in compliance with the newly-amended regulations. Read more below about this and other important recent updates since the new Prop 65 regulations became effective, including the updated comment deadline of January 11, 2019, on proposed amendments:
Proposed Amendments to Clarify Responsibility to Provide Consumer Product Exposure Warnings
In the latest change to the new regulations, on November 16, 2018, OEHHA proposed amendments to the new Clear and Reasonable Warning regulations, Section 25600.2, Responsibility to Provide Consumer Products Exposure Warnings. The amendments are intended to clarify how a product manufacturer and other parties in the supply chain that receive products before a retailer (i.e., distributors, suppliers, producers, importers, etc.) can warn or pass along warning information downstream. The current language, as effective on August 30, 2018, states that notice must be sent to “the authorized agent for the retail seller.” However, the proposed amendments clarify that parties in the supply chain may send notice “directly to the authorized agent for the business to which they are selling or transferring the product or to the authorized agent for a retail seller . . .”
These amendments specifically endorse what many companies have been doing since (and well-before) the new regulations became effective. Written notice letters from upstream suppliers and manufacturers to downstream distributors and customers have been commonplace among many industries with more complex supply chains. This amendment is a small, but positive reflection that OEHHA is working with some industry interests in mind. Comments on these proposed amendmentsare being accepted until January 11, 2019 at 5:00pm PDT (extended from December 31, 2018) and there was a public hearing on January 3, 2019 at 10:00am PDT.
Short-Form Warning Getting a Second Look by OEHHA
Following the Chemical Watch 6th Annual Regulatory Summit in November 2018, Sam Delson, spokesperson for OEHHA, confirmed that the agency is looking into the use of the “short-form” Prop 65 warning but they “have not made any decisions.” The short-form warning requirements allow companies to apply a warning without identifying the chemical name for which the warning is being applied. This “second look” has apparently arisen from the widespread use of the short-form warning, which the agency claims were only intended for smaller products which could not fit the text of the full warning. According to Chemical Watch, Delson cautioned that “any regulatory revisions shall be done based on the California Administrative Procedures Act” which requires public comment.
Enforcement of PFOAs and PFOSs Begins
OEHHA listed PFOAs and PFOSs to the Prop 65 chemical database of chemicals known to cause cancer or reproductive harm last year on November 10, 2017. However, the Prop 65 Clear and Reasonable Warning requirements do not apply until 12 months after the chemical has been listed (20 months for discharges). Thus, the grace period for PFOAs and PFOSs ended on November 10, 2018 and the Clear and Reasonable Warning requirements will be enforced.
Proposed Amendment to Tailored Warning for Residential Rental Property Exposures
On October 22, 2018, OEHHA proposed amendments to clarify the methods for providing safe harbor warnings for residential rental properties and the methods for providing annual warnings in a renewed lease or rental agreement after the initial term. The proposed amendments state that warnings may be provided via one of the methods listed or through a combination of those methods so long as each known adult occupant receives a warning at the time of renting, leasing, letting, or hiring out the property, and an annual warning thereafter. Comments were accepted until November 7, 2018.
Proposed Regulation Stating that Prop 65 Cancer Warnings Are Not Required for Coffee
Many followed the challenge brought by the Council for Education and Research on Toxics (CERT) against Starbucks Corporation and approximately 90 other coffee companies in the Superior Court of the State of California for the County of Los Angeles alleging that coffee required a Prop 65 warning. And many who followed the litigation found the judgment on March 28, 2018 by California Judge Elihu Berle holding that coffee requires a Proposition 65 cancer warning to be quite shocking. However, the ruling did not prompt the coffee industry to begin labeling their coffee products. Instead, coffee companies sought clarification from OEHHA. That clarification was provided 3 months following the coffee ruling which prompted the appellate court to stay the penalty phase of the lawsuit (after the trial court denied the motion for a stay). In June 2018, OEHHA proposed an Interpretive Guideline clarifying that Prop 65 cancer warnings are not required for coffee under Prop 65. See Proposed OEHHA Regulation Clarifies that Cancer Warnings Are not Required for Coffee under Prop 65. Interestingly, the Director of the Center for Food Safety and Applied Nutrition at the FDA wrote a letter in support of the regulation. The comment period ended just as the new Clear and Reasonable Warning regulations became effective on August 30, 2018, and the appellate court has asked the defense to provide a written status update by January 15, 2019.
Court Determines that Cereal Does Not Require a Prop 65 Warning
Shortly before the new regulations became effective, the Second District Court of Appeals in Los Angeles reversed the trial court and held in Post Foods, LLC v. Superior Court of Los Angeles County, Case No. B284057 (Cal. Ct. App. July 16, 2018) that cereal does not require a Prop 65 warning for acrylamide (the same chemical that is produced during the coffee-making process). The court based its decision on two letters issued from the US Food and Drug Administration (FDA) in 2003 and 2006, advising California officials that while cereal contains acrylamide, it also contains whole grains, which the FDA encourages Americans to consume. The court ultimately determined that the federal interest the FDA has in encouraging Americans to eat more whole grains outweighed the California state-law need to warn for a potential cancer-causing chemical, noting that a Prop 65 warning for acrylamide on whole grain cereals “would mislead consumers and lead to health detriments.”
Since that time, the plaintiff has asked for a rehearing (scheduled for February 2019) and the California Supreme Court denied certiorari in October 2018. This case should be one to watch because it is one of only a few decisions where the defendant has argued federal preemption successfully. This will become important as Prop 65 continues to impact interstate commerce and businesses outside the State of California.