May 31, 2019

Prop 65 labeling law an easy target for enforcers seeking payday

If a company’s products are commercially available to California residents, those products are subject to the state’s Proposition 65 warning label regulations.

Prop 65 — officially titled “Safe Drinking Water and Toxic Enforcement Act of 1986” — is a complex law that requires notifying Californians if they are being exposed to any chemicals from a list of more than 900. The state has only set safe-harbor thresholds for about one-third of the list. That fact, combined with the way the law is written, has made it a target for those who might be looking for a payday.

Anthony Samson, senior attorney and advisor at the firm Arnold & Porter, specializes in California governmental affairs and legislative and public policy. Samson provided insight on Prop 65 during the Food Processing Expo earlier this year that could help food producers avoid costly lawsuits.

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Attorney Anthony Samson speaks on Prop 65 during the Food Processing Expo in Sacramento. Photo: Zeke Jennings

Although the law has been in place for more than 30 years, it’s still important to keep up on changes to its wording and enforcement. In fact, changes to the way warning information should be worded went into effect in August 2018, sometimes referred to as a “clear and reasonable” warning.

Standard Prop 65 warning labels usually include a pictogram of a yellow triangle with an exclamation point in the middle, as well as wording that includes which chemicals are present and what the possible risks are (e.g. cancer, reproductive harm). There is a short-form warning that is applicable in some cases, but Samson said that the regulations contain some ambiguity regarding the short-form warning’s applicability to food products.

Produce processors whose products have been treated with chemicals should pay close attention to the Prop 65 list, as it contains many commonly used pesticides and fungicides.

RELATED: Official OEHHA Prop 65 website

When to provide a warning

Proposition 65 is administered by the California Office of Environmental Health Hazard Assessment (OEHHA), a department of the California Environmental Protection Agency. OEHHA maintains the list of 900-plus chemicals, which are broken down into two basic categories.

“At the basic level, (Proposition 65) requires the state of California to develop a list of both carcinogens and reproductive toxicants and requires companies selling products in the state of California to provide warnings when there is exposure above certain threshold limits,” Samson said.

For food products, a warning typically comes by way of a label on the packaging, but also can be done with signage provided to the retailer to post by the product. When a warning label is necessary is something Samson breaks down into a two-step process, with the second step not being particularly straightforward in many cases.

  • Step 1: Is a detectable level of the chemical present in the product? If yes, proceed to step 2.
  • Step 2: Do exposure levels of the chemical present meet OEHHA-recognized thresholds to require a warning? This is the where it gets complicated.

“For carcinogens, one has to warn if the exposure hits (OEHHA’s) No Significant Risk Level, the NSRL, which is defined as ‘The level of exposure that will result in not more than one excess case of cancer in 100,000 individuals exposed to the chemical over a 70-year lifeline,’” Samson said.

“For reproductive toxicants … in plain English, basically take the level that there is no effect in laboratory animals, and then you take that level and you divide it by 1,000. That’s the level you have to warn for reproductive toxicity under Prop 65,” he said. “It’s the most conservative warning threshold in the world for chemicals of these types.”

Samson said companies have asked the OEHHA to specify safe-harbor thresholds in more cases.  Officials have been reluctant, however, and often in an ominous way. “The answer, at times, has been, ‘We can, but you probably won’t like the number if we do,’” he said.

Lawsuits 

Because of the absence of state-recognized warning thresholds, as well as the way the statute is designed has made Prop 65 a target for lawsuits. The statute has a private right of action, which allows anyone to sue on behalf of the public interest, even if they’re not a resident of California.

In addition, a plaintiff only has to show that the chemical is present and that there is a route of exposure — in the case of food, it’s reasonable to assume it’s going to be eaten. A plaintiff does not have to prove that the chemical is present at a level that requires a warning label, however. It’s up to the defendant to prove it’s not. Samson said the burden of proof in Prop 65 is “as unique as any law ever written” in U.S.

“We are seeing more and more private enforcers entering this space because it’s very easy for them to bring suit,” Samson said. “They have a very low burden of proof. This is an easy money maker for them.”

While district attorneys and the state attorney general have the right to sue under Prop 65, they rarely do. The overwhelming majority of lawsuits come from the private sector.

Penalties for Prop 65 infractions run up to $2,500 per incident per day. So, for a case of 12 items shipped, it could be as much as $30,000 for just that case. Also, with costs for litigation so high, as are the amount of time and money it takes to research to prove chemical levels are within reasonable limits, Samson said almost all lawsuits are settled.

Because so few cases go to trial, there is virtually no legal precedent guiding businesses from a compliance standpoint.

Samson said there is hope for rule changes that will help curtail, what he called, “bounty hunters” looking for an easy payday, but as of right now, the avenue is paved for lawsuits.

“On average, about 68 to 74% of all monies exchanged go to the trial attorneys,” Samson said. “The remainder is split up between the enforcer and the state of California.”

Samson noted a 2015 suit involving canned foods, fruit juices and baby food products where dozens of companies teamed up to split the litigation and research costs needed to fight the suit. They were successful in proving lead levels did not require warning labels.

“It’s fair to assume that defendants would win most cases if they were actually litigated because a lot of the claims brought are sort of silly,” Samson said. “But again, one individual defendant to go through that process is incredibly expensive.”

— By Zeke Jennings, managing editor


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