The Environmental Research Center, which frequently files lawsuits to enforce California’s Safe Drinking Water and Toxic Enforcement Act f 986 (Prop. 65), has sued Clif Bar & Co., alleging that it fails to warn consumers that its protein, energy, electrolyte, and snack bars contain lead, a substance known to the state to cause cancer, birth defects and other reproductive harm. Envtl. Research Ctr. v. Clif Bar & Co., No. 13 32935 (Cal. Super. Ct., San Francisco Cty., filed July 18, 2013). The plaintiff seeks injunctive relief and civil penalties of $2,500 per day for each violation of Prop. 65.
Tag Archives Prop. 65
A California court has tentatively determined, following a 10-day bench trial, that the levels of lead in canned or packaged fruit, vegetable and grape drink products, or baby foods, are below the regulatory “safe harbor” exposure level under Proposition 65 (Prop. 65) and therefore that the companies which make them are not required to provide Prop. 65 warnings to consumers. Envtl. Law Found. v. Beech-Nut Corp., No. RG11 597384 (Cal. Super. Ct., Alameda Cty., tentative decision entered July 15, 2013). Because few Prop. 65 cases go to trial, the court was faced with a number of questions of first impression, primary among them application of the “naturally occurring” defense. The parties did not dispute the presence of lead in the products or that it has been identified as a known carcinogen and reproductive toxin under Prop. 65. Beech-Nut Corp., the original defendant, was joined at trial by a number of other…
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has slated a public pre-regulatory workshop for July 30, 2013, to gather input from stakeholders “on the content of a regulation that would address Proposition 65 (Prop. 65) warnings.” According to OEHHA, the regulation, “if formally proposed and adopted, would either supplement or replace existing OEHHA regulations governing Proposition 65 warnings and conform to any statutory changes if enacted.” Gov. Jerry Brown (D) has indicated his intent to amend the law in 2013. Among the proposed changes OEHHA is considering are (i) requiring, at a minimum, information in all warnings, the health effect for which the chemical was listed, how a person will be exposed and “simple information (such as washing hands) on how to avoid or reduce an exposure”; (ii) “Approved warning methods and content for use by manufacturers and retailers regarding exposures to listed chemicals in foods, including foods…
A number of companies that make cereals and other products containing acrylamide, a chemical believed to be a byproduct of the Maillard reaction and found in baked or fried starchy foods, have been sued under California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65) for failing to provide warnings to consumers. RBC Four Co. LLC v. Post Foods, LLC, No. BC507122 (Cal. Super. Ct., Los Angeles Cty., filed April 30, 2013). According to the plaintiff, the chemical was added to the Prop. 65 list as a substance known to the state to cause cancer in January 1990 and became subject to the law’s warning requirements 20 months later. The complaint also notes that the current safe-harbor acrylamide-intake level is .2 μg/day and that the defendants’ products contain acrylamide levels that exceed maximum allowable dose levels “for chemicals causing reproductive toxicity with require warnings under Proposition 65.” Alleging that…
Working through California’s Environmental Protection Agency, Gov. Jerry Brown (D) will collaborate with stakeholders and the legislature to advance Proposition 65 (Prop. 65) reforms that would end frivolous “shake-down” lawsuits, improve warnings about dangerous chemicals and strengthen the science that supports warning levels. The governor will have to convince environmental and consumer groups that the reforms are needed; any changes will apparently require the approval of at least two-thirds of both legislative houses, and supporters believe that the current law works well to force businesses to cease making products with chemicals known to the state to cause cancer or reproductive toxicity. Numerous lawsuits have been filed against food companies under the law since it was adopted in 1986 for various substances found in foods, including acrylamide, MEI-4 and lead. According to a May 7, 2013, press release, the governor will seek to (i) cap or limit attorney’s fees in Prop.…
California’s attorney general (AG) has filed a suit against a number of candy manufacturers and grocery retailers, alleging that they have violated Proposition 65 (Prop. 65) by failing to label “ginger candies and other food products containing ginger” and/or “plum candies and other products containing plums,” which the AG claims contain lead, a substance known to the state “to cause cancer, birth defects, and other reproductive harm.” People v. Dakota Bros., No. __ (Cal. Super. Ct., San Francisco Cty., filed April 30, 2013). Under Prop. 65, “businesses must provide a ‘clear and reasonable warning’ before exposing individuals to lead,” according to the complaint, and the defendants have allegedly not provided such warnings. The AG seeks civil penalties, not to exceed $2,500 per day for each violation, injunctive relief, attorney’s fees, and costs.
California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) has added bisphenol A (BPA) to the “list of chemicals known to the State to cause reproductive toxicity for purposes of Proposition 65” (Prop. 65). The listing, which will require warnings to consumers, took effect April 11, 2013. Failure to provide the warnings can result in significant financial penalties, and alleged violations can be enforced by private citizens. OEHHA based its determination on a National Toxicology Program report which concluded that the chemical “causes reproductive toxicity (developmental endpoint) at high doses.” BPA is commonly found in cash register receipts, CDs and DVDs, and food packaging material, including plastic containers and bottles, and metal cans and lids. When OEHHA proposed listing the chemical, it also proposed adopting a maximum allowable dose level (MADL) of 290 micrograms per day. Additional information about the MADL proposal appears in Issue 468 of this Update. When…
According to a news source, trial begins April 8, 2013, in the Environmental Law Foundation’s Proposition 65 (Prop. 65) lawsuit against 28 food manufacturers and retailers in a California state court, alleging failure to warn the public that their baby and toddler foods and fruit juices contain lead, a chemical known to the state to cause reproductive toxicity or cancer. Envtl. Law Found. v. Beech-Nut Nutrition Corp., No. 11-597384 (Cal. Super. Ct., Alameda Cty., filed Sept. 28, 2011). Details about the case appear in Issue 412 of this Update. The trial will involve the manufacturing defendants and will resolve their affirmative defenses only. Trials over damages issues and claims against the retailers have not apparently been scheduled. Among the defenses that the court will consider are whether (i) Prop. 65, as applied, is preempted under the Food, Drug, and Cosmetic Act and federal nutrition programs; (ii) exposure to the products’ lead levels…
The California Assembly’s Environmental Safety and Toxic Materials Committee has scheduled an April 16, 2013, hearing on a bill (A.B. 227) intended to give small business owners two weeks to correct a purported violation of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65) without incurring any liability under the law. The measure was introduced by Assemblyman Mike Gatto (D-Silver Lake) at the request of a coffeehouse owner who received a 60-day legal notice after he started serving alcoholic beverages without the requisite Prop. 65 warning to customers about chemicals, such as alcohol, known to the state to pose a cancer or reproductive health risk. If the letter recipient demonstrates to the satisfaction of a city attorney, local district attorney or state attorney general that the violation has been corrected, no further enforcement action could be taken. As currently drafted, the bill would provide a safe harbor…
The American Chemistry Council (ACC) has filed a complaint for declaratory and injunctive relief in a California state court against California EPA’s Office of Environmental Health Hazard Assessment (OEHHA), which in January 2013 proposed listing the chemical bisphenol A (BPA) as a reproductive toxicant under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). ACC v. OEHHA, No. ___ (Cal. Super. Ct., Sacramento Cty., filed March 1, 2013). Further details about OEHHA’s proposed BPA listing appear in Issue 468 of this Update. According to ACC, the agency’s scientific advisory panel, relying on the same document that OEHHA claims supports the listing—the National Toxicology Program’s Center for the Evaluation of Risks to Human Reproduction (NTP-CERHR) Monograph on the Potential Human Reproductive and Developmental Effects of Bisphenol A—unanimously concluded in July 2009 that BPA does not satisfy the criteria for listing developmental toxicants under Prop. 65. NTP-CERHR apparently concluded that “the…
