Underscoring the difficulty of proving the naturally occurring exemption is the fact that there is just one case where a court has found this defense was proven. California Proposition 65 regulates the amount of heavy metals and other substances contained in jewelry. Electric safety and standards are not covered by CA Prop 65, importers should refer to other federal or state electrical safety codes or regulations like CPSC, CPSA, FCC, or UL standards, although the latter is often voluntary. Awareness raised by Prop 65 led Coke to change its use of 4-MEI, a potential carcinogen found in some caramel coloring. Today, the list contains approximately 800 chemicals which are found in food, household products, household appliances, dinnerware, drinkware, and utensils, among other things. Non-compliant cosmetics often contain heavy metal substances such as arsenic, cadmium, lead, mercury, nickel, asbestine, formaldehyde, toluene. One of them, a compound found in carrots, hops, lemongrass and cannabis, had been linked to cancerous renal tumors in male rats that were force-fed large quantities of … Chemicals | August/September 2015 Proposition 65’s “Naturally Occurring” Exemption. More specifically, Proposition 65 says the list "at a minimum" must consist of chemicals recognized as carcinogens under the California Labor Code, which in turn recognizes carcinogens identified by IARC. Some foods contain chemicals on the Proposition 65 list. Proposition 65, known as the “Safe Drinking Water and Toxic Enforcement Act,” was passed by California voters as a ballot initiative in 1986. The trial court’s decision granting the exemption was upheld by the appellate court. Proposition 65 requires the state of California to publish and maintain a list of chemicals knows to the state of California to cause cancer, birth defects, or other reproductive harm. Notices. It is Upcoming and past meetings, hearings and workshops. Proposition 65 became law in November 1986, when California voters approved it by a 63-37 percent margin. Prop 65’s warning standards are uniquely low and not safety-based. •    Is the safe harbor amount good science? In August 2016, OEHHA adopted new regulations, effective on August 30, 2018, which change the information required in Proposition 65 warnings. Here are a few points that should serve to drive discussion: By Dennis E. Raglin, Esq. Announcement of a public workshop on May 23, 2011 to gather suggestions and requests for updates to the Proposition 65 regulations. Third, it is difficult for food & beverage companies to comply with the warning requirement of Prop 65 because consumers are likely to be alarmed if they see such a warning. The rise of the organic food and supplement industry continues to drive change in the market. Certain foods and beverages contain chemicals that are on the Proposition 65 list because they can cause cancer and/or birth defects or other reproductive harm. 2. Your email address will not be published. Some restricted chemical substances and heavy metals by California Proposition 65 could be found in apparel and textile products, such as phthalates, lead, and cadmium. Health & Human Safety Code, Section 25249.6. Fluoride and fire retardants are also very commonly detected in various kinds of sofas, which can cause health issues such as liver cancer, kidney cancer, reproductive and developmental issues to the users. A Prop 65 warning on your food or supplement label doesn't necessarily mean the product is unsafe, or that you shouldn't take it. Try our Product Compliance Software Tool Here. Unfortunately, the current regulations make it difficult, if not impossible, to prove the defense. Create an automatically generated PDF report covering product safety requirements, labeling, certification, and lab testing rules for a wide range of products in the EU and the United States. Your email address will not be published. Law and Regulations. Dennis E. Raglin, Esq., is a partner in the San Francisco, CA, office of Sedgwick LLP. ; … Yes, good question. For example, textiles containing excessive amounts of lead (as in, above the set limits) cannot be sold in California. List of California Proposition 65 Product Testing Companies, Mo Chuiyan has an MA degree in Islamic Studies from the Hebrew University of Jerusalem. Here you’ll find free guides and tools helping you ensure compliance with product regulations in the US, EU, and Australia. •    No intentional adding of chemicals. [3] Sources of acrylamide in the diet include French fries, potato chips, other fried and baked snack foods, roasted asparagus, canned sweet potatoes and pumpkin, canned black olives, roasted nuts, roasted grain-based coffee substitutes, prune juice, breakfast cereals, crackers, some cookies, bread crusts… California Proposition 65 regulates chemicals and heavy metals in consumer products sold in the state of California. Some of our products contain naturally occurring elements that are included on the Prop 65 list of substances that require a warning. What this means in practice is that to show a chemical is naturally occurring requires the company to prove the chemical is not added as a result of any human activity and that Good Manufacturing Practices could not prevent the chemical from being part of the product. These chemical substances are used during the manufacturing processes of textiles and their accessories. Brown v. Tri-Union Seafoods, LLC. Reform of the naturally occurring exemption should be explored by OEHHA to make it effective and winnable for more than a select few. [2] The European Food Safety Authority estimates the average adult consumes around 50 micrograms per day, which is 100 times the Prop 65 limit. Proposition 65 Regulatory Update Project, 2011-2012 Project List. The end result is that the company making the product is likely responsible for chemicals found in the constituent crops caused by some form of human activity, regardless of whether these chemicals are recently deposited or the result of deposits in the soil over many years, perhaps tens, hundreds or even thousands. References An update to this exemption is sorely needed. Prop 65 has an ever-growing list of chemicals that if used in manufacturing, they have “safe harbor” limits on how much can be in each serving of a product. Environmental Law Foundation v. Beech-Nut Corporation.   Current Proposition 65 List. What’s Next? In fact, the voter pamphlet for Proposition 65 suggested that the intent of the proposition’s drafters was to require warnings where toxicants were intentionally added. Lead is listed as a “reproductive toxicant,” and Proposition 65 imposes a stringent (and some would argue a scientifically dubious) maximum level of 0.5 micrograms of lead per day as safe. The current Proposition 65 list is dated December 18, 2020. Ballot pamphlet. Meetings, Hearings and Workshops. Smithfield Foods Sued for False Food Safety Claims, 10 Reasons Why You Should Be Using Chlorine Dioxide, Undeclared Allergens and Automation: The Crossroad of Food Safety and the Reduction of Recalls, Sanitizers and Disinfectants: The Chemicals of Prevention, FDA Temporarily Eases Food Labeling Requirements During Pandemic, Johnson Sea Products Issues Allergy Alert on Undeclared Wheat & Soy in “Home Style Crab Cakes”, New Hoque and Sons, Inc. This places the burden on the company and not a plaintiff bringing the suit, and it means proving two difficult negatives. California’s Proposition 65, also called the Safe Drinking Water and Toxic Enforcement Act, first became law in the state in 1986. Foods; California’s Prop 65 compared to National Standards. For example, one of the most commonly detected categories of toxic chemical substances is plasticizers, which are often used in erasers. Proposition 65’s Regulations Make Proving the Defense Difficult List of chemicals: Proposition 65 requires the Governor to publish a list of chemicals that are known to the state of California to cause cancer or reproductive toxicity, and to update this list at least once a year. A more recent case illustrates the more typical challenges companies face in trying to prove the naturally occurring exemption. The Difficulty of Proving No “Human Activity” Any product in California that might cause someone to be exposed to more than 0.5 micrograms per day requires the Prop 65 warning label. RG11597384 (2013). That said, there are some exemptions for small companies, and if the products carry a warning label. Though a good result, this case took a multimillion-dollar coordinated endeavor by the massive, worldwide tuna industry. Proposition 65, known as the “Safe Drinking Water and Toxic Enforcement Act,” was passed by California voters as a ballot initiative in 1986. The California Office of Environmental Health Hazard Assessment (OEHHA) administers the Proposition 65 program and publishes the listed chemicals, which includes more than 850 chemicals. The current Proposition 65 list is available on-line below, as a pdf or Excel download or through WestLaw.The Excel document also includes the listing mechanism for each chemical listing and the safe harbor level, if one has been adopted. The official name of Proposition 65 is the Safe Drinking Water and Toxic Enforcement Act of 1986. What is the Prop 65 List? The list is updated periodically and currently contains over 800 substances. Links and downloads related to Proposition 65 statute and regulations. All Proposition 65 notices. After all, most companies in this industry simply obtain the product from a supplier and sell it—they do not add chemicals to it in their manufacturing process. It can also be found in other fried snack foods, roasted asparagus, canned sweet potatoes and pumpkin, canned black olives, roasted nuts, roasted grain-based coffee substitutes, prune juice, bread crusts, toast, and certain breakfast cereals, crackers, cookies and baked snack foods. This level is considered a “safe harbor.” Any level over that requires a warning or an exemption, allowing the defendant to avoid a warning. However, many foods contain substances, such as saturated … She has previously worked as a marketing developer for Middle Eastern countries in an E-commerce company. He is co-chair of the firm’s Proposition 65 and Green Chemistry practice group and is also a member of its Life Sciences practice group. She currently works as a content editor for Compliancegate.com, JUST ORDERED BEDSPREAD WITH PROP 65 HOW SERIOUS IS THIS AND WHY THE HELL DO THEY USE SOMETHING THAT CAN CAUSE CANCER I LIVE IN ARIZONA NEVER KNEW ABOUT THIS LAW. Such substances are banned or restricted by California Proposition 65 in the use of consumer products, including toys. Pollution, or runoff that causes chemicals to leach into the groundwater from miles away, or that falls as rain, can be considered the result of “human activity” dating far back in time. The vast majority of companies are not in an economic position to mount such a successful defense. Recalls Radhuni Curry Powder Because of Possible Health Risk, Ramar Foods Recalls Mint Chocolate Chip With Hidden Spinach Ice Cream Because of Possible Health Risk, Mellace Family Brands California Inc. (Johnvince Foods) Recalls Wegmans Semi-Sweet Chocolate nonpareils, 18.5oz (1lb 2.5oz) 524g Due to Undeclared Milk Allergen, UNFI Voluntarily Recalls Wild Harvest® Organic Basil Due to Possible Health Risk, Nestle Prepared Foods Company Recalls Lean Cuisine Fettuccini Alfredo Products Due to Misbranding and Undeclared Allergens, Conagra Brands, Inc. The Proposition 65 List. As a practical matter, Prop 65 warnings are required for any product (food or non-food) that exposes an individual in California to virtually any detectable amount of a listed chemical. The 0.5 micrograms per day safe harbor limit applies uniformly to products sold in California, whether the product is a table lamp, a leather handbag or a nutritional supplement. The law was intended to address public concerns in the 1980s when residents started learning more about chemicals and compounds in the environment. What types of chemicals are on the Proposition 65 list? Stationery products such as erasers and correction fluid sometimes contain dangerously high concentrations of multiple chemicals that are listed in California Proposition 65 as restricted substances harmful to human health. Proposition 65 and the “Naturally Occurring” Exemption Newly-purchased furniture generally gives out odors that contain harmful chemical substances such as formaldehyde, ammonia, benzene, TVOC, and other volatile organic gas. Labor Code: Proposition 65 requires the listing of substances identified by IARC as causing cancer in humans or laboratory animals. Proposition 65 warnings must be "clear and reasonable" and likely to be seen by a consumer, under the Attorney General's regulations. 4th 1549 (2009). rel. 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