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  • Proposition 65: The Good, the Bad and the Ugly

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    July 30, 2019

    July 30, 2019 Adam Regele Environmental Regulation

    One cannot travel very far in the Golden State without being bombarded with cancer warnings. Thanks to Proposition 65 (Prop 65), a 1986 voter-approved ballot initiative titled California’s Safe Drinking Water and Toxic Enforcement Act of 1986, it would seem that just about everything in California causes cancer, birth defects or other reproductive harm.

    Well, get ready for even more warnings on even more food products.

    On July 5, 2019 the Office Environmental Health Hazard Assessment (OEHHA) proposed modified amendments to Prop 65 that could dramatically increase the amount of warnings on food products.

    The “Good”

    The good news is, this is not the first time the agency has tried this. In 2015, OEHHA proposed four pre-regulatory proposals that would have substantially increased the amount of Proposition 65 warnings, increased frivolous “shakedown” lawsuits, and unjustifiably weakened the scientific basis for warning levels. These pre-regulatory proposals were in direct response to the now seminal Proposition 65 case, Environmental Law Foundation v. Beech-Nut Nutrition Corporation (2015), In Beechnut, the plaintiff alleged that defendants failed to provide a Proposition 65 warning regarding exposure to lead in certain baby foods, fruit juices and packaged fruit. Lead is not intentionally added by companies, but instead is found in trace levels in food products because of its presence in the environment. Defendants prevailed at trial by showing that the average consumer’s reasonably anticipated rate of exposure to lead in the products, when properly evaluated to account for non-daily consumption, did not exceed the “safe harbor” of 0.50 micrograms.

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