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Proposition 65: Signs of Common Sense for Business Defendants

California’s Proposition 65, although well-intentioned and in many instances providing consumers necessary information with regard to products they consume or use, has also been used by plaintiffs and their counsel to reap huge financial benefits rather than to benefit the public. Recent court rulings and regulatory agency actions are bringing some common sense into the fold. Josh Bloom, a Principal in Meyers Nave’s Consumer Products Regulation group, published an article in the Daily Journal that analyzes the three important developments summarized below. Please click here to read his article.

Court Prevents Duplicative Proposition 65 Actions
In a critical procedural development, a superior court ruled against a private plaintiff seeking to intervene in another private plaintiff’s Prop. 65 consent judgment. In a case handled by Josh Bloom, World and Main entered into a settlement with a private Prop. 65 plaintiff regarding various products and chemicals (Englander v. World and Main, CGC-18-566066, San Francisco Superior Court). Another private plaintiff, APS&EE, attempted to sue World and Main in Los Angeles County Superior Court for the same products and chemicals, and attempted to intervene in the Englander lawsuit solely to recover its attorney fees. The court summarily denied APS&EE’s motion to intervene, noting that the intervention request would not further the public benefit. APS&EE, facing a res judicata defense, dismissed its lawsuit lest it be faced with a sanctions motion. The result was a victory for World and Main’s comprehensive Prop. 65 compliance program and it ensures that fear of duplicative actions will not deter other companies from similarly doing the right thing.

Proposed Regulation Comes to the Rescue
On March 28, a court ruled in Education in Toxics (CERT) v. Starbucks that coffee drinkers are exposed to levels of acrylamide that pose a certain risk to cancer and, therefore, a Prop. 65 warning is required. On June 22, the California Office of Environmental Health Hazard Assessment (OEHHA) proposed a rule that would overturn the court’s decision. The proposed rule states: “Exposures to listed chemicals in coffee by and inherent in the process of roasting coffee beans or brewing coffee do not pose a significant risk of cancer.” If adopted, a Prop. 65 label will not be required. A public hearing on the rule is scheduled for August 16 in Sacramento and comments must be submitted by August 30.

Appellate Court Holds FDA Preempts Prop. 65 Acrylamide Label for Cereal
The California Court of Appeal in Post Foods v. Superior Court ruled that a Prop. 65 warning label is not required to warn of exposures to acrylamide from cereal. The court, in overturning a lower court decision, concluded that Prop. 65 is preempted by the federal Nutrition Labeling and Education Act, finding that a Prop. 65 warning would conflict with the Food and Drug Administration’s regulations and guidance that promote the health benefits of whole grains and other benefits of cereals and related products. The court further noted that the FDA had sent letters to California regulators expressly opining that “Proposition 65 acrylamide warnings on whole grain cereals would mislead consumers and lead to health detriments.”