In 1986, Californian’s adopted Proposition 65 (Prop 65). The law was intended to act as a labeling law to require a clear and reasonable warning to consumers about the presence of State-listed chemicals in consumer products at levels that may cause cancer or reproductive toxicity. Whether the law has achieved its purpose is the subject of great debate.
The scope of Prop 65 has been in the cross-hair of advocates and detractors since inception. For some, the law reflects an opportunity to force manufacturers to reduce the presence of chemicals in products to which California consumers are potentially exposed. For others, you can only scream lead, phthalates, BPA, and other chemicals of concern so many times before the screaming turns into a cacophony of noise that fails to consider whether there is a real risk of exposure and harm.
The debate about exposure to Prop 65 chemicals often turns on the question of what exposure triggers a warning requirement. The state has set certain safe harbor levels for some chemicals. For other chemicals, the exposure debate is ongoing, but it is up to the manufacturer to demonstrate by a preponderance of the evidence that exposure does not create a health risk.
The level at which no warning is required is called the Maximum Allowable Dose Level or MADL. The MADL is often expressed in terms of an exposure, for example micrograms per day. Any level below an MADL does not require a warning. So the question arises, does a single exposure above an MADL mandate a warning?
The courts have been slow to consider the question. However, we have a glimpse of at least one court’s answer in Environmental Law Foundation (ELF) v. Beech-Nut Nutrition Corp. In this case, the California Court of Appeals – First Appellate District, held that exposure to reproductive toxins can be averaged over time. If such average confirms exposure levels below established safe harbors (i.e., the MADL), the product would qualify for an exception to Prop 65 and no warning label would be required.
The Beech-Nut case involved the issue of exposure to lead in various fruit products (fruit cups, juices, baby foods) intended for babies and children. The Prop 65 complaint alleged that the products exposed consumers to lead without providing a warning. There was no dispute about whether lead was present in the products. At issue, was whether the exposure exceeded the MADL for lead of 0.5 micrograms per day which would trigger a need to include a warning label on the products.
The plaintiffs argued that Prop 65 requires a product warning for any exposure above the MADL. The defendants countered that since the reproductive harm caused by exposure to lead occurs over a longer period of time, it was appropriate to average the exposure over an appropriate period of time.
The court agreed with defendants and held that it was appropriate to consider exposure averaging to determine if a Prop 65 product warning is required.
It will be interesting to see how the Beechnut opinion unfolds as the advocates and detractors of Prop 65 continue the fight. One thing is for sure, Beechnut provides at least some push back for companies seeking to defend their products against Prop 65 bounty hunters who assert claims without considering the merits of an exposure defense.
A copy of the Beechnut opinion can be found by clicking here: http://www.courts.ca.gov/opinions/documents/A139821.PDF