OEHHA’s Proposed Amendments would change the safe harbor warning for sales of almost every consumer product over the internet or through mobile applications, so that if a Prop 65 warning is required for the item, it has to be provided not only at the time … Four consecutive attorneys general have accused these citizen enforcers and their attorneys of preying on companies that can ill afford to defend themselves, of filing weak or frivolous cases, collecting unreasonable fees, and offering illusory remedies in settlements that vaccinate companies from further accountability for their products. Proposition 65 imposes large penalties, enforceable through civil litigation, for failing to provide a warning unless the company can prove that the presence of the listed chemical presents "no significant risk," which is defined in a way that renders definitive proof difficult, costly, and uncertain. Dining establishments like Il Fornaio Italian restaurant warn of potential chemicals in beverages and a variety of dishes, including fried and baked foods. “The issue kind of went away,” Plesent said. The California Office of Environmental Health Hazard Assessment (OEHHA) says Prop 65 “requires businesses to provide warnings to Californians … One customer then demanded a refund for $7,000 worth of goods she had bought to start her own private-label line of “nontoxic” bath goods. A Starbucks spokesperson said the company is “committed to providing safe, quality products for our customers.“ The company declined to respond to detailed questions about the case. Other topics include gig workers, minimum wage, and diversity on corporate boards. A Proposition 65 sign warns visitors to Disneyland that they may be exposed to chemicals that can cause cancer or reproductive harm. This toasted nori at Lassens Natural Foods & Vitamins in Echo Park is certified organic — but also stuck with a Proposition 65 warning. In 2016, Sacramento environmental engineer Whitney Leeman served violation notices to more than three dozen tea companies, alleging their infusions exceeded Proposition 65’s lead exposure standards. So, buyers of the green bikini can’t know enough to know what risk, if any, it poses. 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 it, five days a week, for up to two years. So is the Proposition 65 warning label a sign of real danger or is it to help save companies from lawsuits? The repealed and new regulations provide, among other things, methods of transmission and content of warnings deemed to be compliant with the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65). That kind of information is buried in the back pages of civil court settlements that horse-trade consumer safety and business costs. Proposition 65 (Safe Drinking Water and Toxic Enforcement Act) requires businesses to provide Californians with a clear and reasonable warning … It would be crazy-making.”, Consumer fear “is really just what gets the ball rolling for everybody else to make the right decisions — even if that initial consumer impact is not itself rational,” Barsa said. While adding warning pictograms to your products' labels may seem punitive, it should be noted that the Prop 65 revisions include some elements designed to be helpful to businesses. OEHHA is subject to the California Public Records Act and other laws that require the release of certain information upon request. The new environmental exposure signage requirements notably differ from the previous requirements because the signage must (i) identify and name at least one listed chemical for each risk category (i.e. Other companies that had quietly settled before the Starbucks case benefited retroactively. They fear citizen-enforcer lawsuits more than they fear freaking out customers. Everyone benefits, including the public, from having a standard. “You have to explain all the science to a judge who maybe last studied chemistry in 1968.”. But 2018 saw a record of 829 settlements totaling $35 million, according to the most recent data from the California attorney general’s office. Few sweeping environmental ballot measures had survived vigorous industry-funded counter-campaigns. Fighting for a settlement, despite no evidence of a violation, was not as unusual as it might seem, said lead attorney Norris, representing tea companies Bigelow and Hain. “I’m like 90% certain that a lot of clothes expose you to the same harmful things but California requires you by law to inform the consumer,” said a user from Boston. The pair have netted her nearly $700,000 in lawyer fees, according to attorney general records. These cookies will be stored in your browser only with your consent. Some will have little reason for frustration with the new regulations:  those providing warnings in compliance with the warning content and methods established in court ordered settlements or final judgments to which they are a party are deemed to be providing clear and reasonable warnings.  This means, however, that old-style warnings will continue in use for many products. Others wait until a customer enters a California ZIP Code. “This tag is literally on the McDonald’s drive thru window lmao it’s everywhere,” another user commented. Plesent made a strictly business decision: “We do not wish to fight against California.” He added a warning. It would look like one or both of these: Legislative attempts to curb such behavior temporarily slowed the rise in Proposition 65 prosecutions, reined in their costs and limited the shares collected by perpetual plaintiffs and their attorneys. In an effort to minimize the burden on retailers, the regulations provide for a detailed process by which manufacturers, importers, packagers, distributors and other suppliers can transfer responsibility to retailers by providing and renewing written notification to a retail seller’s authorized agent.  However, retailers are directly responsible for their own brands and in certain other situations. The translations on this website are provided for the purpose of assisting businesses transitioning to the new safe harbor warnings regulations. Most companies quietly clean up their act, he said. Proposition 65 requires the State of California to maintain and update a list of chemicals that can cause cancer, birth defects or other reproductive harm. Online shopping, Twitter, fast fashion and Cardi B weren’t around when Proposition 65 was passed. If you submit this form, please be aware that your name and e-mail may be provided to third parties. From smoking pot, and burning the rolling papers used to twist it up. And in that fine print were the seeds of Proposition 65’s successes and excesses. He threw out the settlement and dismissed the three cases. Kahn would have none of it this time. Proposition 65 requires businesses to provide warnings to Californians about significant exposures to chemicals that cause cancer, birth defects or other reproductive harm. Companies in every sector of the consumer economy now routinely attach warnings for any of the more than 900 chemicals and elements covered by Proposition 65, without testing for them or attempting to reformulate products. Becerra based that on the confidential product tests Leeman had submitted to his office — and that by law, only his office sees. Like Plesent, they just don’t want to fight California. We do not have an ETA on when shipping to California will be turned back on.”, Shipping to California is what pushed Grass Family Hemp out of business. Wendel Rosen uses cookies on our website to analyze traffic, optimize your experience, and deliver high quality content. He is a Cornell graduate and former USC international journalism fellow, and speaks Spanish. The translations provided herein represent OEHHA’s best efforts in translating the safe harbor warning content. His tests three decades ago showed consumers overreacted at first, equating the notices with the surgeon general’s warnings on tobacco products. Four months after the Starbucks settlement, they filed violation notices against three more tea companies: Bigelow, Hain Celestial and a distributor, Walong Marketing. Reached by The Times, Tanya Moore declined to talk about the case, her client or where he conducts business, citing attorney-client privilege. Telling that to a judge can be prohibitively expensive — Proposition 65 places the burden of proof on the defendant, a reversal of the “presumption of innocence” principle that otherwise underpins the U.S. justice system. “It’s a very unusual design,” Roe said. In August 2016, OEHHA adopted new regulations, effective on August 30, 2018, which change the information required in Proposition 65 warnings. This website uses cookies to improve your experience while you navigate through the website. More commonly, it pushes back against abuses by the primary enforcer empowered by the fine print of Proposition 65 — citizen prosecutors who have filed more than 30,000 violation notices under the measure since it went into effect in 1988. Some Background On The California Proposition 65 Warning Label. Proposition 65 Proposition 65, officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986, was enacted as a ballot initiative in November 1986. “Our work was the undisputed catalyst in large settlements brought by public enforcers that mandated chemicals such as lead being removed from the inside and outside of bottles of Coca-Cola, Pepsi, and Dr. Pepper, among other items,” he wrote in an email response to questions from The Times. Nineteen companies banded together and went to court to defend themselves, led by Starbucks, maker of Teavana. “She didn’t care,” Grass said of Tanya Moore. Staff writer Ryan Menezes contributed to this report. Leeman and Chanler were not done with the tea aisle. Electronics Supply Chain Faces New California Proposition 65 Warning Requirements and Litigation Risks. He has reported and edited science, environmental issues, fires, wars and breaking news. The current Proposition 65 list is dated December 18, 2020. On August 30, 2018, new “Clear and Reasonable Warning” regulations take effect in California.  The ubiquitous signs and labels advising of the presence of chemicals that cause cancer or reproductive toxicity will all need to be changed to incorporate new “safe harbor” language or those providing the warnings will be at risk of enforcement.  For some, it will be a straightforward matter of revising the language, for others, it will be a more nuanced exercise of examining potential chemicals and evaluating warning obligations.  In most cases, the generic signs with which we are familiar will no longer do. Hain Celestial representatives didn’t respond to requests for comment. New warning regulations take effect on August 30, 2018. 1 Businesses can choose to comply with either the current or new regulations in the interim, and products labeled with a warning prior to the effective date of the regulations can continue to rely on that warning. If the issue doesn’t go away, companies turn to Mike Easter. “As such, the company has opted to temporarily stop selling merchandise to consumers in California. Tea companies including Starbucks-owned Teavana paid over $1 million to settle one Proposition 65 case — with little effect on the lead allegedly found in their teas. It also said that “no person in the course of doing business shall knowingly and intentionally expose” anyone to those chemicals “without first giving clear and reasonable warning.”. The new regulation changes the safe harbor warnings in several important ways. Proposition 65 (Prop 65) requires a warning before exposing a person in California to any of the 900-plus chemicals listed as causing cancer or reproductive toxicity. Laws taking effect in 2021 will make California businesses offer employees more help to cope with the COVID-19 pandemic. But so could “any person in the public interest.” Those words deputized citizens to sue anyone exposing Californians to toxins in the products they used. The owner and sole employee, Frank Grass, sold hemp powder to Kenneth Randolph Moore of San Jose in August 2017. You also have the option to opt-out of these cookies. Tea seller Bigelow has said the most lead it has detected in its brewed teas was one-fifth the amount of lead allowed in federal drinking water standards. “That doesn’t mean that if you wash with lemon grass soap you [will] be in danger,” said Plesent. Until this date, products can use either the new form of warning or the September 2008 regulations. “It was about the headline, not the fine print.”, Details fell largely to Roe and a couple of other environmental attorneys. They also did not submit as evidence anything like the analysis Easter does. “I would say it’s still beneficial to drink tea, but don’t drink it from places that have excess lead,” Schwalfenberg said. What is the purpose of the new Proposition 65 warnings website? Two years ago, the sports fishing industry hired Easter after citizen enforcers accused member companies of exposing the lure-fishing public to illegal doses of phthalates, common plasticizers that can rub off their barbed versions of squid, shad and frogs. “She just skipped over it like it wasn’t even said.”. That waiting period gives public prosecutors such as the attorney general and county district attorneys a shot at taking over the case on behalf of the public. “You would never have been able to draft, by committee, anything as innovative as Prop. Plesent is not alone. Not enough for Gerry Schwalfenberg, a University of Alberta doctor whose toxicology study helped draw attention to heavy metals absorbed from soils by tea trees. One $100,000 settlement over lead in salsa didn’t eliminate lead and didn’t result in a printed warning, either; it changed fine print on the label — the “portion” went from a tablespoon to a teaspoon. Proposition 65 permanently changed the way companies assess risk and choose ingredients, and took tons of toxic chemicals out of production. None of those legal battles goes to a jury. A judge approved a $90,000 consent agreement last year. The new regulations limit other “supplemental” information provided with the warning to only the source of exposure or information on how to avoid or reduce exposure.  A warning that includes other information loses automatic safe harbor protection. Necessary cookies are absolutely essential for the website to function properly. Current Proposition 65 List. We also use third-party cookies that help us analyze and understand how you use this website. Becerra’s office had ended its silence on the cases with a rare intervention and bombshell disclosure in court: Based on what both parties were now offering as a “safe” level, almost none of the companies had ever violated Proposition 65. Among the most prolific citizen prosecutors using Proposition 65, Leeman has collected more than $550,000 in bounties (a 25% share of civil penalties) since 2001, attorney general records show. “But political forces became involved to make Proposition 65 overwhelming, overreaching, overdone and overblown.”. “Does this give the consumer enough information to make an informed risk-benefit trade-off? Political strategists such as Tom Hayden, then a state assemblyman, and his wife at the time, Jane Fonda, saw toxic pollution as a way to draw liberal-leaning voters to the polls and exploit a political weak point for Deukmejian, who had vetoed several toxic cleanup bills. Hayden, among others, bankrolled the measure. The Proposition 65 warning must be placed on that product before it is shipped to the consumer. Such public demands amount to scolding — they hold no consequences if they’re ignored, and Chanler ignored them. If there is any ambiguity, the English version of the regulatory text is authoritative. Again, it was the attorney for the tea companies who fought the attorney general. Remember 2020 as the year when markets boomed as workers struggled, As the pandemic put 22 million Americans out of work, equity prices rose by $5 trillion, thanks to tech gains, Grubhub drivers say app change eats into tips, jeopardizing a usually generous season. Most times, attorneys just work out a less expensive compromise. Becerra’s office publicly demanded the pair withdraw those cases — they had “no merit” based on what he knew about their test results, he wrote. Industrial sites like Aerocraft Heat Treating in Paramount require Proposition 65 notices in addition to other warning signs. Plesent complied. Out of these cookies, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. 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