Tag Archives Prop. 65

The California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed initiating a regular rulemaking process to extend until December 30, 2017, an emergency measure that allows retailers to use standard point-of-sale warning messages for bisphenol A (BPA) exposures from canned and bottled foods and beverages. Under Proposition 65 (Prop. 65) regulations, consumer products that contain any chemical known to the state to cause reproductive toxicity or cancer must display a “clear and reasonable” warning on “labeling, shelf tags, shelf signs, menus or any combination thereof as long as the warning is prominent and conspicuous.” Taking into account comments received on the emergency measure, OEHHA believes that the proposed regulation “will provide consistent, informative, and meaningful warnings to consumers about significant exposures to BPA.” These warnings will included a link to OEHHA’s website, “which will contain fact sheets, links to informational materials on BPA from other authoritative…

Consumer group As You Sow has notified the state of California that a number of chocolate manufacturers are allegedly selling chocolate with levels of lead and cadmium that exceed limits set by the state’s Safe Drinking Water and Toxic Enforcement Act (Prop. 65). Testing by the organization allegedly indicated that 35 of the 50 chocolate products sampled—including those from Trader Joe’s, Whole Foods, Godiva and Lindt, among others—contained enough lead or cadmium to trigger Prop. 65 warning requirements. As You Sow has filed 60-day notices with 18 manufacturers based on its testing; following the 60-day period, the organization may initiate litigation against the companies if public officials have not sought enforcement of the statute. “Lead and cadmium accumulate in the body, so avoiding exposure is important, especially for children,” As You Sow President Danielle Fugere said in a March 23, 2016, press release. “Our goal is to work with chocolate…

The California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed an emergency action to temporarily allow the use of standard point-ofsale warning messages for bisphenol A (BPA) exposures from canned and bottled foods and beverages. Under Proposition 65 (Prop. 65) regulations, consumer products that contain any chemical known to the state to cause reproductive toxicity or cancer must display a “clear and reasonable” warning on “labeling, shelf tags, shelf signs, menus or any combination thereof as long as the warning is prominent and conspicuous.” Starting May 11, 2016, all foods and beverages that result in BPA exposure must display a similar warning “unless the person causing the exposure can show that the exposure is 1,000 times below the no observed effect level for the chemical.” To avoid consumer confusion and give manufacturers time to transition to BPA-free packaging, OEHHA proposes allowing the temporary use of point-of-sale…

The California Environmental Protection Agency’s (Cal/EPA’s) Office of Environmental Health Hazard Assessment (OEHHA) has announced the development of hazard identification materials for nickel and nickel compounds, perfluorooctanoic acid (PFOA) and its salts, and pefluorooctane sulfonate (PFOS) and its salts to assist in the agency’s consideration of the chemicals for possible listing under the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Food is a major source of nickel exposure, with an average intake for adults estimated to be approximately 100 to 300 micrograms per day (µg/d), while PFOA and PFOS are chemical compounds that have been widely used in commercial and industrial applications, including food packaging and water-resistant coatings. OEHHA specifically seeks data relevant to assessing the chemicals’ reproductive toxicity for evaluation by the Developmental and Reproductive Toxicant Identification Committee. Comments are due by April 4, 2016. See OEHHA News Release, February 19, 2016.   Issue 594

California Attorney General Kamala Harris has proposed amendments to the state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65) that would require increased transparency and accountability in how the penalties paid by companies are spent by consumer groups, environmental organizations and other private enforcers of the law. In 2014, Prop. 65 actions reportedly resulted in payments of $29 million, of which $21 million was spent on attorney’s fees and costs. The proposed changes would require “clearly defined” purposes relevant to the violations that prompted the settlement. The proposal would also cap “in lieu of penalties” payments to ensure the Office of Environmental Health Hazard Assessment receives sufficient funding and raise the bar for demonstrating that settlements requiring reformulation confer a significant public benefit. Public comments about the proposed revisions will be accepted until November 9, 2015. “California has led the nation for decades in protecting our residents…

A California state court has approved the settlement agreement in a lawsuit brought by the Center for Environmental Health (CEH) alleging that PepsiCo Inc. products contain levels of 4-methylimidazole (4-MEI) that exceed the limits imposed by the state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Ctr. for Envtl. Health v. Pepsi Beverages Co., No. 14711020 (Cal. Super. Ct., order entered September 17, 2015). Under the settlement agreement, PepsiCo will pay $385,000 and must ensure by January 1, 2016, that its soft drinks sold in California contain levels of 4-MEI within the safe harbor limits set by Prop. 65. CEH initially filed a notice of violation with the California Office of the Attorney General in January 2012; details appear in Issue 427 of this Update. Meanwhile, the parties to a proposed class action alleging similar facts have agreed to stay the case until December 14, 2015, pending…

Environmental group As You Sow has filed a 60-day notice of intent to sue the manufacturer of Soylent, a food substitute product, for alleged failure to warn that the powder contains lead and cadmium exceeding levels considered safe under California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). The product at issue is Soylent 1.5, which As You Sow alleges contains 12 to 25 times the safe-harbor level of lead and four times the safe-harbor level of cadmium, according to two samples reportedly tested by an independent laboratory. “These heavy metals accumulate in the body over time and, since Soylent is marketed as a meal replacement, users may be chronically exposed to lead and cadmium concentrations that exceed California’s safe harbor level (for reproductive harm),” As You Sow CEO Andrew Behar said in an August 12, 2015, press release. “With stories about Silicon Valley coders sometimes eating three…

In response to a petition for administrative rulemaking filed by the Center for Environmental Health, the California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) has announced its intention to update the existing maximum allowable dose level (MADL) for lead. The agency will post a notice for hearing on the petition on October 9, 2015, in Sacramento. In particular, the petition claims that the current MADL for lead—0.5 micrograms per day—“is too high to protect Californians from the well-established reproductive effects of lead that do and can occur at levels below 500 micrograms per day.” Faulting the courts for allowing defendants in enforcement actions “to average lead exposures over time,” CEH also alleges that the existing regulation “has been interpreted to allow lead exposures of up to 7 micrograms a day.” Based on the evidence provided in its petition, the organization has asked OEHHA to repeal or amend…

A California federal court has refused to dismiss a class action consolidated from nine lawsuits against PepsiCo, Inc. alleging that the company concealed its products’ content of 4-methylimidazole (4-MEI), a chemical listed as known to cause cancer or reproductive harm under the state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Sciortino v. Pepsico, No. 14-0478 (N.D. Cal., order entered June 5, 2015). The lawsuits were filed after a January 2014 Consumer Reports test reportedly found that the caramel coloring in PepsiCo sodas contained 4-MEI at levels higher than the Prop. 65 safety threshold of 29 micrograms. Details of a similar lawsuit dismissed in March 2015 requesting medical monitoring appear in Issue 557 of this Update. The court first discussed the notice requirements under Prop. 65, which require 60 days of notice of the alleged violation to government agencies to provide a “non-adversarial opportunity for public agencies to…

Consumer Advocacy Group, Inc. has filed a lawsuit against T.J. Maxx, its parent company and its food supplier alleging that they failed to provide a warning of lead content in a raspberry balsamic vinegar product in accordance with the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65), the California law that requires warnings on the labels of products that contain substances known to cause cancer or reproductive harm. Consumer Advocacy Grp. Inc. v. Olivier Napa Valley Inc., No. BC580857 (Cal. Super. Ct., Los Angeles Cty., filed May 4, 2015). The complaint asserts that because all “[v]inegar contains lead,” the defendants should have known that the product was subject to Prop. 65 labeling requirements. Consumer Advocacy Group argues that it investigated the product and gave notice of the alleged violation to each defendant, the state attorney general, county district attorneys and city attorneys but none of the authorities…

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