Introduction
If you sell goods in the State of California, you are probably familiar with Proposition 65 (“Prop 65”), which requires businesses to provide a warning before they “knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity.” Prop 65’s sweeping reach is due to the fact that the state has listed over 900 chemicals as potentially causing cancer or reproductive toxicity, and it applies to any product that a business sells, or manufactures, distributes, or offers for sale, into California.
Because of Prop 65’s reach, the chemicals and products that can trigger the warning obligation can even catch businesses that are familiar with the law off-guard. Other businesses across multiple industries struggle to navigate compliance with confusing regulations detailing what are presumptively clear and reasonable warnings. Despite these challenges, the consequences for not complying with Prop 65 can be seve
Legal Update
Headaches For Businesses
April 14, 2021
If you sell goods in the State of California, you are probably familiar with Proposition 65 (“Prop 65”), which requires businesses to provide a warning before they “knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity.” Prop 65’s sweeping reach is due to the fact that the state has listed over 900 chemicals as potentially causing cancer or reproductive toxicity, and it applies to any product that a business sells, or manufactures, distributes, or offers for sale, into California.
Because of Prop 65’s reach, the chemicals and products that can trigger the warning obligation can even catch businesses that are familiar with the law off-guard. Other businesses across multiple industries struggle to navigate compliance with confusing regulations detailing what are presumptively clear and reasonable warnings. Despite these challenges, the consequence
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On March 30, 2021, a federal court granted the California Chamber of Commerce s (CalChamber) preliminary injunction to temporarily bar the California Attorney General and any private litigants from filing any new Proposition 65 lawsuits targeting acrylamide in food and beverage products. This is a significant ban, but it should be remembered that it impacts new judicial court filings only notices and existing settlements/filings remain in effect.
What Is Acrylamide?
Acrylamide is a chemical that can be used in a variety of industries such as paper and pulp, construction, foundry, oil drilling, textiles, cosmetics, food processing, plastics, mining, and agricultural. The California Office of Environmental Health Hazard Assessment (OEHHA) added acrylamide to the Proposition 65 list of carcinogens in 1990.
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In a landmark ruling with implications for the future of
Proposition 65 enforcement, the US District Court for the Eastern
District of California has preliminarily enjoined any person from
filing or prosecuting lawsuits seeking cancer warnings for
acrylamide on food and beverage products sold in California. The
ruling stops hundreds of enforcement actions in their tracks, bodes
well for the ultimate end of Proposition 65 acrylamide lawsuits,
and has implications for other listed chemicals.
The California Office of Environmental Health Hazard Assessment
(OEHHA) added acrylamide to the Proposition 65 list of carcinogens
Monday, April 5, 2021
Proposition 65 is the California law that requires warning labels on products sold to California customers that potentially expose users to certain chemicals which may cause a risk of cancer or reproductive harm. The state maintains a list of approximately 900 chemicals that fall within Prop 65, and the statute provides detailed guidance on what the warning label must contain. Because of the steep penalties that can be imposed under Prop 65 litigation, compliance with the warning requirements is vital for any company selling products into California. Recently, the California Office of Environmental Health Hazard Assessment (OEHHA) has proposed amendments to the format requirements for Proposition 65 warnings that will require companies to re-assess the sufficiency of their current warnings.