Business Groups Urge California to Fight Challenge of Proposition 65 Safe Harbor for Lead
California business groups urged the state to fight a new lawsuit that seeks to overturn California’s safe harbor for lead from Proposition 65 warnings, in a letter dated Feb. 4 (here). The California Chamber of Commerce, joined by national associations including the American Apparel and Footwear Association and the Toy Industry Association, said the economic impact “cannot be understated” of overturning the safe harbor provision, which relieves companies from putting Proposition 65 warnings on products that expose consumers to less than 0.5 micrograms per day of lead.
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The lawsuit was filed in January by the Mateel Environmental Justice Foundation, which according to the letter is an active participant in the trend of bringing lawsuits against companies under Proposition 65. The California law requires warning labels on products that contain certain listed chemicals that are known to cause cancer or birth defects, and has created a situation where “a substantial portion of warnings provided to consumers and to the public are provided solely to avoid litigation,” industry has said (see 1411180066).
If Mateel is successful in overturning the lead safe harbor, it would “open the doors to more unnecessary litigation, more burden on our overtaxed court system, more shifting of wealth to the coffers of the ‘citizen enforcers’ and their counsel, and more incentives for businesses to provide unwarranted warnings, creating more consumer confusion as Proposition 65 warnings proliferate and indiscriminately cover products with trace concentrations of lead in the same manner as products containing concentrations that may actually present a meaningful health hazard,” said the letter.
Meanwhile, the California Office of Environmental Health Hazard Assessment proposed changes to the Proposition 65 regulations in January that would modify labeling requirements (here). The amendments would require 12 “dirty dozen” chemicals -- acrylamide, arsenic, benzene, cadmium, carbon monoxide, chlorinated tris, formaldehyde, hexavalent chromium, lead, mercury, methylene chloride, and phthalates – to be listed by name on any Proposition 65 warning on products where they are present, according to Mintz Levin’s Consumer Product Matters blog (here). Current warning language that a product contains a chemical would be changed to say a product “can expose” the consumer, and a yellow triangle with an exclamation point would also have to appear next to the warning, said other alerts from law firms Morrison Foerster (here) and Jenner & Block (here).