Swift Action Needed in Prop. 65 Case to Avert Disruption in Multiple Sectors

The California Chamber of Commerce is urging the Fifth District Court of Appeal to expedite its decision and reverse the erroneous listing of a commonly used chemical on the Proposition 65 list of cancer-causing substances.

In a friend-of-the-court brief, the CalChamber and Civil Justice Association of California argue that if the court fails to rule before the erroneous listing of the chemical glyphosate goes into effect on July 7, 2018, the results will be disruptive and costly.

The fallout may include “a flood of meritless Proposition 65 claims” and “California consumers receiving cancer warnings that are simply untrue.”

Glyphosate is the active ingredient in Roundup® weed and grass herbicide products. Glyphosate’s listing under Proposition 65 not only impacts the manufacturer of the chemical, but also manufacturers and users of glyphosate-based products, including farmers, food companies and retailers.

The manufacturer of glyphosate, Monsanto Company, and others are suing the state Office of Environmental Health Hazard Assessment (OEHHA), arguing that the method used to list glyphosate as a carcinogen is unconstitutional and scientifically unsubstantiated.

OEHHA relied on the Labor Code listing mechanism, which allows OEHHA to list substances under Proposition 65 when those substances have been listed as human or animal carcinogens by the International Agency for Research on Cancer (IARC). IARC identified glyphosate as a probable human carcinogen in March 2015. OEHHA listed glyphosate under Proposition 65 via the Labor Code mechanism on July 7, 2017, as a result of IARC’s listing.

Appellants challenged the Labor Code listing mechanism as unconstitutional because, among other reasons, it leaves the listing decision to an undemocratic foreign body (IARC) that is not under the oversight or control of any California governmental entity.

Tough Choice

Proposition 65 requires businesses to warn individuals before exposing them to chemicals on the Proposition 65 list. Since the law was enacted in 1986, the list has grown to about 950 chemicals.

The law allows private persons or organizations to bring actions to enforce its provisions.

As the CalChamber amicus brief points out, “Thus, a business using a product containing even trace amounts of a listed chemical will be placed in the untenable position of choosing between warning that the product contains a chemical ‘known to the state’ to cause cancer—even if it believes science indicates the statement is false—or face the potential of expensive and burdensome lawsuits by public or private enforcers.”

Tool for Bounty Hunters

Private enforcers (bounty hunters) driven by a desire for profits rather than concern for public health have been active since Proposition 65 became law.

In 2016, private enforcers served 1,576 notices of violation on businesses in California and across the country. Of those 1,576 notices, 760 resulted in settlements totaling $30,150,111. More than $21 million of the settlement dollars in 2016—72%—went to plaintiffs’ lawyers as attorney fees.

Proposition 65 notices of violation and an annual summary of settlements are available on the California Attorney General’s website, www.oag.ca.gov/prop65.

To Warn or Not to Warn

Proposition 65 includes a “safe harbor” defense, permitting a business not to provide a warning when it can show the exposure to a Proposition 65 chemical poses no significant risk of cancer.

An exemption is available if the defendant can show the exposure was below the No Significant Risk Level (NSRL) for chemicals listed as known carcinogens. OEHHA has proposed an NSRL for glyphosate, held a hearing and accepted public comments, but has not yet adopted the proposed NSRL.

The CalChamber brief points out that the “safe harbor” defense “requires a risky, expensive, and time-consuming effort,” making relying on that defense “neither economically rational nor feasible.” Once a chemical is listed, “the only practical alternative to the risk of litigation is to provide California consumers with a cancer warning—even if such warning is false.”

Immediate Impacts

The CalChamber brief urged the court to hear and resolve the glyphosate listing issues well in advance of the date the listing goes into effect because businesses need time to determine whether to provide warnings and how to implement those warnings.

Food companies, for example, will need to determine if trace amounts of glyphosate residues are in or on the products purchased from farmers. Those companies then must decide whether to apply warnings to avoid litigation and have enough lead time to produce and implement clear and reasonable warnings before the effective date of the listing.

Manufacturers of liquid soap products/shampoos and vinyl gloves were targeted for alleged failure to provide Proposition 65 warnings in 2013 and 2014 after OEHHA listed coconut oil diethanolamine (cocamide diethanolamine) and diisononyl phthalate as carcinogens.

Staff Contacts: Erika Frank and Louinda V. Lacey

CalChamber in Court

Erika Frank
Erika Frank, longtime general counsel and executive vice president of legal affairs for the CalChamber, accepted an of counsel position in September 2021 at the Shaw Law Group, a leading employment law firm in Sacramento. She leveraged more than two decades of legal, governmental and legislative experience in advising the CalChamber and its members on the impact that labor laws, court decisions and regulations will have on employers. She has been the most frequent host of The Workplace podcast; oversaw and contributed to CalChamber labor law and human resources compliance publications; co-produced and presented webinars and seminars; and headed the Labor Law Helpline. She holds a B.A. in political science from the University of California, Santa Barbara, and earned her J.D. from the McGeorge School of Law, University of the Pacific.