Proposition 65

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As we reported earlier, the California Office of Environmental Health Hazard Assessment (OEHHA) seeks to amend the regulations under the Safe Drinking Water and Toxic Enforcement Act of 1986 (aka “Proposition 65”) by adopting tailored safe harbor warnings for cannabis (marijuana) smoke and delta-9-tetrahydrocannabinol (delta-9-THC) exposures.  OEHHA has now scheduled a virtual public hearing…

The California Office of Environmental Health Hazard Assessment (“OEHHA”) recently modified the text of its proposed Proposition 65 regulation regarding warnings for chemicals formed in foods by cooking or heat processing (most frequently associated with the formation of the carcinogen acrylamide during the cooking process).  OEHHA removed two food categories from the warning requirement (almond…

The California Office of Environmental Health Hazard Assessment (OEHHA) seeks to amend the regulations under the Safe Drinking Water and Toxic Enforcement Act of 1986 (aka “Proposition 65”) to add specific tailored “safe harbor exposure warning methods and content” for retail products that can expose consumers to cannabis (marijuana) smoke or delta-9-THC via inhalation, ingestion,…

As we reported, the California Office of Environmental Health Hazard Assessment (OEHHA) seeks to significantly amend the regulations under the Safe Drinking Water and Toxic Enforcement Act of 1986 (aka “Proposition 65”) to revise the method of transmission and content of State-approved “safe harbor” short-form warnings for consumer products. If passed as proposed, manufacturers,…

The California Office of Environmental Health Hazard Assessment (OEHHA) has proposed to significantly amend the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65, to revise the method of transmission and content of State-approved “safe harbor” short-form warnings for consumer products.

OEHHA believes implementation of the warning regulations has revealed…

We recently reported on a potentially seminal California court decision that struck down Proposition 65 warning requirements for a consumer product on grounds of “compelled speech.”   As anticipated, the State is appealing the decision to the U.S. Court of Appeals for the Ninth Circuit, according to a notice filed Wednesday, September 9th.

The State Office of Environmental Health Hazard Assessment listed glyphosate as a chemical known to the State to cause cancer in 2017 under Proposition 65 despite the fact that almost all other government agencies found there to be insufficient or no evidence that glyphosate causes cancer.  However, the State followed the International Agency for Research on Cancer’s classification of glyphosate as “probably carcinogenic,” contrary to the majority.  In a major win for farming groups and herbicide makers, the Court held ruled in National Association of Wheat Growers v. Zeise that the State could not compel companies to provide a warning (compelled speech) without adequate governmental justification, a violation of the First Amendment freedom of speech.…

Continue Reading California challenging recent district court decision to limit Proposition 65 warnings on First Amendment ‘compelled speech’ grounds

California is inviting public comments on a proposed regulation that would exclude the need to place warnings on many cooked, baked or fried food items that may expose individuals to acrylamide, a chemical the State has deemed to be a carcinogen.

California’s Safe Drinking Water and Toxic Enforcement Act (aka “Proposition 65”) prohibits businesses from knowingly and intentionally exposing consumers to over 900 chemicals that have been listed as “known to the state to cause cancer or reproductive toxicity” (without first giving a clear and reasonable warning to the consumer).  Acrylamide is regulated under this law as a carcinogen.

Acrylamide can be formed by the cooking or heat processing of many foods, including French fries, potato chips, other fried and baked snack foods, roasted asparagus, canned sweet potatoes and pumpkin, canned black olives, roasted nuts, roasted grain-based coffee substitutes, prune juice, breakfast cereals, crackers, some cookies, bread crusts, and toast.…

Continue Reading Proposition 65 – Potential warning requirement exemption for exposures to listed chemicals in cooked or heat processed foods

A U.S. District Court recently barred enforcement of California’s Proposition 65 warning requirement on the First Amendment ground of “compelled speech.” Proposition 65 requires businesses to provide warnings to consumers before exposing them to over 900 chemicals linked to cancer or reproductive toxicity. Although the State of California will almost certainly appeal the decision, National Association of Wheat Growers et al., v. Xavier Becerra[1] could be a turning point for Proposition 65 and set the stage for further challenges to consumer product warning labels on First Amendment grounds.
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Continue Reading Recent district court decision limits Proposition 65 warnings on First Amendment ‘compelled speech’ grounds

Following a recent settlement between the California Attorney General’s Office and a number of alcoholic beverage retailers, the Office of Environmental Health Hazard Assessment (OEHHA) is proposing to clarify the Proposition 65 warning requirements for alcoholic beverages sold on the internet, in catalogs, and via third-party providers. The most prominent item in the settlement’s methods and in OEHHA’s proposed amendments are that alcoholic beverages sold online or through a catalog must have a warning on the internet site or in the catalog, as well as a warning provided to the purchaser or delivery recipient prior to or at the same time as delivery (e.g., a warning label on a bottle or can).

The amendments would affect industry stakeholders such as retailers, manufacturers, and third-party providers. Affected businesses will likely benefit from the proposed regulatory action because the amendments provide clarifying guidance concerning the provision of Proposition 65 warnings for alcoholic beverages purchased via the internet (including mobile applications) or through catalogs. However, with the increased use of third-party providers to facilitate sales, businesses may need to change their current standards to ensure that warnings are provided to the purchaser or delivery recipient prior to or at the same time as delivery.…

Continue Reading Last call for alcohol… comments. Proposed amendments to clarify the requirements for providing alcoholic beverage Proposition 65 warnings