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California Proposition 65 regulates chemicals and heavy metals in consumer products sold in the state of California. Non-compliant cosmetics often contain heavy metal substances such as arsenic, cadmium, lead, mercury, nickel, asbestine, formaldehyde, toluene. Labor Code: Proposition 65 requires the listing of substances identified by IARC as causing cancer in humans or laboratory animals. Health & Human Safety Code, Section 25249.6. This level is considered a “safe harbor.” Any level over that requires a warning or an exemption, allowing the defendant to avoid a warning. Notices. For general information about Prop 65’s list of chemicals, you can contact OEHHA’s Prop 65 program at (916) 445-6900, or visit the Proposition 65 page. There was also a wealth of existing scientific data on relevant ocean life already in the public domain that the defense was able to utilize with the analysis of expert witnesses. It is a toxics right-to-know law requiring warnings on products sold in California if they contain certain chemicals that are on a state list of “known” carcinogens or reproductive toxicants. 171 Cal. If a pesticide you use is on the Proposition 65 list, your employer must warn you if you could be exposed to enough pesticide to cause a significant health risk. 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. This places the burden on the company and not a plaintiff bringing the suit, and it means proving two difficult negatives. The naturally occurring exemption under Proposition 65 provides that “[h]uman consumption of a food shall not constitute an ‘exposure’ for purposes of [Proposition 65] to the extent that the person responsible for the exposure can show that the chemical is naturally occurring in the food.”[2] If a company’s product contains over 0.5 micrograms of lead and the company can prove the lead is naturally occurring, it can avoid placing warnings. The current Proposition 65 list is dated December 18, 2020. 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 regulation lays out a stringent three-part requirement a defendant must meet to be able to invoke the defense: (1) prove the “natural background” of the chemical in the area where the food is grown or raised; (2) prove that the chemical did not result “from any known human activity;” and (3) prove that by Good Manufacturing Practices, the chemical exists in its lowest feasible level. The official name of Proposition 65 is the Safe Drinking Water and Toxic Enforcement Act of 1986. •    Food and supplements are unique. CA Prop 65 compliance can only be verified through third-party lab testing. The list contains a wide range of naturally occurring and synthetic chemicals that are known to cause cancer, birth defects or other forms of reproductive harm. Environmental Law Foundation v. Beech-Nut Corporation. By Brett N. Taylor, Esq. The rise of the organic food and supplement industry continues to drive change in the market. The Proposition 65 list contains many different chemicals, including dyes, solvents, pesticides, drugs, and food additives. Awareness raised by Prop 65 led Coke to change its use of 4-MEI, a potential carcinogen found in some caramel coloring. 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. Other than cadmium, the following toxic heavy metal substances are often found for the making of the jewelry, which is banned or restricted by California Prop 65: Below you find some examples of products that might contain the above-mentioned restricted substances. 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. That said, there are some exemptions for small companies, and if the products carry a warning label. FSM eDigest | October 2, 2018 What the Food Industry Needs to Know About the New Prop 65 Warning Requirements. 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. It is 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. New Warning (effective 8/30/16) Food warnings will vary by product. Here are a few points that should serve to drive discussion: App. Ct. Alameda County, No. •    Is the safe harbor amount good science? The Office of Environmental Health Hazard Assessment (OEHHA) maintains the list of chemicals regulated under Proposition 65. Proposition 65 (Prop 65) is a California law proposed initially as the Safe Water and Toxic Enforcement Act and approved by voters in 1986. Learn more. That trial involved lead in fruit products.5 In this case, although there were multiple defendants claiming that neither they nor their growers added lead to the food products or ingredients, the court ruled that the defendants’ evidence was insufficient and that they “failed to adduce evidence showing the proportion of lead in their products which is naturally occurring (distinguishing and then proving man-made versus pre-existing levels of lead)” and that they “could have done more (through manufacturing processes) to reduce the lead in their products to the lowest level currently feasible.”[5] rel. 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. Prop 65 compliance in the food industry has not received a great amount of attention and the amount of information available to public is limited. 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 … How to Reform the Naturally Occurring Defense 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. 2. These toxins can cause harm to the skin, brain and nervous system and even cancer and, as such, they are under the purview of California Proposition 65. Apr 28, 2011; Request to the Proposition 65 Food Warning Workgroup - Your Feedback is Requested 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. 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. 1. Ballot pamphlet. 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. The Prop 65 regulations include a provision stating that Prop 65-listed chemicals that are naturally-occurring substances in food, or in other consumer products made from the food containing the substance (such as cosmetics) do not trigger the warning requirement 27. The following is a list of chemicals published as a requirement of Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as California Proposition 65, that are "known to the state to cause cancer or reproductive toxicity" as of January 3 2020.. The Prop 65 exposure standards are strict that whole foods such as carrots, apples, tomatoes, green beans, lettuce, potatoes, and corn contain exposures in excess of Prop 65 limits. Prop 65’s warning standards are uniquely low and not safety-based. Your email address will not be published. These chemical substances are used during the manufacturing processes of textiles and their accessories. [2] Consuming this product can expose you to chemicals including [chemical name] which is known to the State of California to cause cancer, birth defects or other reproductive harm The 1986 voter pamphlet and the Proposition 65 statute enacted did not suggest voters wanted to treat industrial poisons and toxins the same way as food, already regulated by the U.S. Food and Drug Adminstration, which might contain small quantities of chemicals due to many years of the ecosystem’s development. 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. 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. That said, there are many substances that cause cancer. However, many foods contain substances, such as saturated … 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. Current Proposition 65 List. Proposition 65 became law in November 1986, when California voters approved it by a 63-37 percent margin. 4. In addition to counseling and representing clients in Proposition 65 matters, he represents medical device and pharmaceutical clients in product liability matters in both state and federal courts. Food and supplement manufacturers and retailers selling products in California are frequent targets of Proposition 65 actions. This allowable lead level is particularly burdensome to manufacturers and distributors of food-based products and nutritional supplements because both the natural environment (soil and water) and some common dietary elements (such as calcium) already contain lead naturally, meaning that often a product can exceed the safe harbor lead level allowed in Proposition 65 based on average daily dosing. 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. [1] When Proposition 65 chemicals are found in food, but are proven to be “naturally occurring,” they provide an exemption to the requirement to warn. The list is updated periodically and currently contains over 800 substances. Proposition 65’s Regulations Make Proving the Defense Difficult   This law became commonly known as Prop 65. California Proposition 65 regulates the amount of heavy metals and other substances contained in jewelry. Plaintiffs argued that tuna fish cans should carry Proposition 65 warnings because methylmercury is a reproductive toxicant on the Proposition 65 list. What is the Prop 65 List? Hence, by the end of the year, we may also see proposed regulations targeting the naturally occurring exemption as part of this overall push. Though a recently filed plaintiffs’ lawsuit seeks to find any level of lead actionable under Proposition 65, many manufacturers and trade groups have argued that the 0.5-microgram safe harbor level stabled under Proposition 65 decades ago is unreasonably stringent and not supported by acceptable science when compared with the overall total amount of lead consumers ingest from a variety of other foods every day and when compared with various national and international health organizations’ recommendations allowing higher levels of lead as safe and acceptable. Required fields are marked *. 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. 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. Yes, good question. 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. The most common Proposition 65 chemical noticed in violations, in both food and nonfood products alike, is lead. Some of our products contain naturally occurring elements that are included on the Prop 65 list of substances that require a warning. 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