Power To The Plaintiffs In Prop 65 Proposals

Stoel Rives attorney Melissa Jones authored an article in Law360 titled “Power To The Plaintiffs In Prop 65 Proposals.” The article discusses a number of pre-regulatory draft proposals released by California’s Office of Environmental Health Hazard Assessment (“OEHHA”) concerning Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986. The draft proposals would make significant changes to existing law as well as making it potentially more difficult for companies to defend against frivolous Prop 65 lawsuits.

Among the changes proposed to Prop 65 are updates to the safe harbor level, or Maximum Allowable Dose Level (“MADL”), for lead. (The MADL is the level at which no observable reproductive developmental effects will occur upon exposure to a chemical at a level 1,000 times higher.) As well as lowering the existing MADL for a single day for lead, limits would be added to Prop 65 for exposures occurring over longer periods of time. The safe harbor levels for chemicals other than lead that cause reproductive toxicity would be changed to limit them to a single day.

Another proposed change is in the calculation of the level of exposure to consumer products being based on the arithmetic rather than geometric mean, a method that the OEHHA believes is the appropriate metric for identifying average consumption levels of a food or consumer product because the geometric mean “underweights the rate of exposure of those people who consume significantly more of a food or product than more typical consumers.”

Further proposed changes would: require the measured level of a reproductive toxicant to be based on a single lot of the final product and not on a chemical concentration averaged across multiple lots; and include in Prop 65 levels for arsenic and lead that would be considered “naturally occurring” in certain foods such as rice.

Jones concludes that in light of the potential raising of the bar that would be caused by the changes for companies defending Prop 65 lawsuits “[t]rade associations and industry groups would be well-advised to review these proposals carefully to determine a response strategy to the proposed rule changes.”

Read “Power To The Plaintiffs In Prop 65 Proposals,” published September 11, 2015, (Subscription required.)