But lawyers representing industries subject to Prop 65, including food and supplement companies, contend the pre-regulatory proposal would burden businesses and open the door to more litigation.
SACRAMENTO, Calif.—Last year, California Gov. Edmund Brown, Jr. (Democrat) sought to modernize Proposition 65, a 28-year-old law intended to alert consumers about the presence of dangerous chemicals in foods, supplements and consumer products.
The governor's ideas for reform of Prop 65 were promising: reduce the potential for groundless litigation; furnish the public with more detailed warnings; and modify certain safe harbor levels at which warnings are not required.
In an effort to reach a broad consensus on the proposals that would yield the support of at least two-thirds of the California Legislature, Brown convened a large, diverse group of stakeholders ranging from environmental groups to industries subject to the law, which is more formally known as the Safe Drinking Water and Toxic Enforcement Act of 1986.
Although the talks among a group of some 200 stakeholders didn't lead to sweeping legislative reform, the governor has moved to provide more detailed Prop 65 warnings through administrative regulations.
A "pre-regulatory draft," unveiled on March 7, 2014, by the Office of Environmental Health Hazard Assessment (OEHHA) within the California Environmental Protection Agency (CalEPA), would include the "most significant changes" to regulations under Prop 65 in more than two decades, according to Greenberg Traurig LLP, an international law firm whose clients include conventional food and dietary supplement firms.
Passed in 1986 by California voters, Prop 65 requires businesses to "provide a 'clear and reasonable' warning before knowingly and intentionally exposing" individuals to a list of chemicals that are known to cause cancer, birth defects or other reproductive harm, according to OEHHA. Approximately 800 chemicals are subject to the law.
OEHHA's draft builds on Brown's efforts to provide the public more useful information about the warnings and help them protect themselves from hazardous substances.
"In general, the idea is to provide more useful information that would describe the type of exposure or hazard when applicable, the things you can do to reduce or eliminate your exposure and in some cases to name the chemicals involved," said Sam Delson, deputy director for external and legislative affairs with OEHHA. "Overall, we are trying to provide the public with better information and provide businesses more certainty, clarity and additional warning options."
Warning labels under the proposal would have to identify the chemical in question if it contains a list of 12 substances, including the following: acrylamide, arsenic, benzene, cadmium, chlorinated tris, 1, 4-dioxane, formaldehyde, lead, mercury, phthalates, tobacco smoke and toluene. In the warnings, businesses also would have to state whether a product actually causes exposure to a listed chemical, said Amy Lally, a partner with the international law firm Sidley Austin LLP and trial lawyer who has represented dietary supplement firms.
While determining whether a chemical is in a product and subject to Prop 65 is "readily ascertainable," identifying whether a product actually causes exposure to a listed chemical cannot be easily determined and is a highly contested area, particularly in food litigation, Lally said. OEHHA points out chemicals that are "naturally occurring" in food and reduced to the "lowest level currently feasible" are exempt from Prop 65's warning requirements.
"Figuring out the naturally occurring levels can be time consuming and expensive," Lally said. "If the warning must say that the product will expose users, many Proposition 65 settlements will be scuttled and our already overburdened court system could become more taxed with food cases that cannot be resolved short of trial."
The statute governing Prop 65 offers safe harbor language that businesses frequently insert in their warnings to ensure compliance with the law and shield themselves from a lawsuit. For consumer products, the safe harbor language includes a statement that a product contains a chemical known to the State of California to cause cancer (for carcinogens) or birth defects or reproductive harm (for reproductive toxins). But OEHHA's pre-regulatory draft would require the disclosure of far more information, either on the warning itself or in a notice to the agency that could be disseminated to consumers via a Prop 65 website.
Stacy Don, a partner with the law firm Toledo Don LLC in Roseville, Calif., which practices Prop 65 law, cites the following information that businesses would have to provide to OEHHA or include on the warning:
· the name and contact information of the person providing the warning;
· the name and contact information for the manufacturer of any product the warning is intended to cover;
· the specific products or category of products the warning is intended to cover, including barcodes, if applicable;