Welcome to the Coleman & Horowitt, LLP Agricultural and Environmental Law Blog. In this blog, we will focus on developments in California Agricultural and Environmental Law.

Nothing in this blog should be construed as legal advice. ch-law.com is a public website, so communications are not privileged. Copyright Coleman & Horowitt, LLP Attorneys at Law (CH Law © 2017. All rights reserved.)

Thursday, October 19, 2017

Prop 65 Certificate of Merit- Assembly Bill No. 1583 Passed


The Governor signed AB No. 1583. The bill that would allow discovery of the basis for the certificate of merit in a 60 Day Notice was signed by the governor:
If the notice made by a person bringing an action in the public interest alleges a violation of the act’s warning requirement, existing law requires that the notice include a certificate of merit stating that the person executing the certificate has consulted with one or more persons with relevant and appropriate experience or expertise who has reviewed facts, studies, or other data regarding the exposure to the listed chemical that is the subject of the action, and that, based on that information, the person believes there is a reasonable and meritorious case for the                                                         private action. 
Existing law requires factual information sufficient to establish the basis of the certificate of merit to be attached to the certificate of merit that is served on the Attorney General.
This bill would require, if the Attorney General believes there is no merit to the action after reviewing the factual information sufficient to establish the basis for the certificate of merit and meeting and conferring with the noticing party regarding the basis for the certificate of merit, the Attorney General to serve a letter to the noticing party and the alleged violator stating the Attorney General believes there is no merit to the action, as specified.
and
This bill would make the basis for the certificate of merit discoverable to the extent that the information is relevant to the subject matter of the action and not subject to the attorney-client privilege, the attorney work product privilege, or any other legal privilege.

Environmental Law for Developers in California







Saturday, September 30, 2017

Summary of New Prop 65 Regulations


On September 25 we attended the Prop 65 Clearinghouse Annual Conference. 

Most of the conference concerned how to comply with the new labeling regulations which are effective as of August 2018.

Below is a summary of the new regulations:

Posted by Lee N. Smith


                                                              SUMMARY

A.      In summary, there is new safe harbor language, a new website for consumers,and language which attempts to clarify liability as between manufacturers and retailers. Most significantly the new regulation asserts that for retailers to be liable actual knowledge must be imputed to them. This would not apply to companies that custom label products.

B. The new regulations go into effect on August 30,  2018,  new  labels  can however be used before that time, if the business desires.

C. The language required by earlier Consent Judgments is considered within safe harbor, even in the older format.

D.    The new labels contain language that requires the identification of at least one of the 
Proposition 65 chemicals in the product, and identifies the public website.

E. The language for each of the types of warnings other than labelling (i.e. environmental vs. 
product) has also changed but are not addressed here.

F.       The  emphasis  in  the  regulations  is  for  liability  to  the  manufacturer  for 
Proposition 65; along with additional duties placed on vendors.

               a.   Product manufacturers have primary responsibility for warning.
               b. The manufacturer can label product or provide notice to distributors/importers/retailers or 
sellers that a product may cause an exposure to a listed chemical.
              c.   Provide warning signs, materials (unless they make other arrangements via contract) to 
retailers.
             d.   The retailers must have actual knowledge of the chemicals to be liable.

G.       Labeling
            a.   Safe Harbor Content and Methods
                     i.    “This product contains [specific chemical]”
                     ii.    “This product can expose you to [specific chemical]”
                     iii.    The name of at least one chemical in the warning.
                    iv.    Named chemicals are those for which warning is being provided.
                     v.    Warning symbol
                     vi.   Provide non-English language warnings in certain situations.

H.      Phase In Effective date of regulation: August 30, 2018.

I.        Consumer products manufactured prior to the effective date will not require new warnings if they meet existing safe harbor requirements.

J.       Court-approved  warnings  expressly  recognized  and  considered  “clear  and reasonable” for parties to litigation.

K.      Tailored Warnings; In Addition To The Specific Warnings Listed Above, The Code Has Modified The Warnings For The Following Categories:
           a.   Environmental Exposure
           b.   Occupational Exposure
           c.   Alcoholic Beverages
           d.   Food and Non-Alcoholic Beverages
           e.   Prescription  Drug  Exposure  and  Emergency  Medical  or  Dental  Care Exposure
           f.   Dental Care
           g.   Raw Wood Products
           h.   Furniture Products
           i.   Diesel Engines
           j.   Vehicles
           k.   Recreational Vessels
           l.   Enclosed Parking Facilities
          m. Amusement Parks
          n.  Petroleum Products
          o.  Service Station and Vehicle Repair
          p.   Designated Smoking Areas
          q.   Exposure to Bisphenol A from Canned and Bottled Foods and Beverages

Please feel free to contact us if you have any questions.

Tuesday, June 27, 2017

Glyphosphate the Main Ingredient in Roundup will be Listed on Prop 65 July 7

The State announced that starting July 7 the Roundup's  main ingredient, glyphosate, will be listed on Prop 65.  A year later,  warning labels could be required on the product. Monsanto, the chemical’s maker, has however filed an appeal after losing in court to block the labeling, arguing that Roundup does not the requirements under Prop 65 as a carcinogen.

Sunday, June 25, 2017

Prop 65: Legislature Considers Bill Revising Certificates of Merit


Prop 65: Legislature  Considers Bill Revising Certificates of Merit

The legislature is considering a bill (AB 1583) that would revise the rules governing certificates of merit. Currently anyone alleging a violation of Prop. 65 must complete a certificate of merit showing they have consulted with an appropriate expert who agrees that there is a reasonable and meritorious basis for the action. The party providing the notice  must provide information backing up the certificate of merit to the state Attorney General's office as part of the 60-day notice of violation they must lodge before filing a lawsuit. 

The current law limits the alleged violator's access to information in the certificate of merit to material that "is relevant to the subject matter of the action and not subject to the attorney-client privilege, the attorney work product privilege, or any other legal privilege." An alleged violator may currently only pursue discovery of the basis of the certificate of merit during litigation if the court has undertaken its own review of the certificate

The new Bill would:

1) Require the California Attorney General (AG) to serve a letter to the noticing party and the alleged violator stating that the Attorney General believes there is not merit to the action, if, after reviewing the factual information alleged to establish the basis for the certificate of merit, and meeting and conferring with the noticing party regarding the basis for the certificate of merit, the Attorney General determines there is not merit to the action; and specifies that the Attorney General’s decision not to serve a letter shall not be construed as an endorsement of the action.

 2) Provides that the basis for the certificate of merit is discoverable to  the extent that the information is relevant to the subject matter of the action and not subject to the attorney-client privilege, the attorney work product privilege, or any other legal privilege.

 3) Requires the Governor’s Office of Business and Economic Development to post, in a conspicuous location on its Internet Web site, any informational materials provided to businesses relating to a business’s obligation under state law, as well as a specified disclaimer.

 4) Finds and declares that this bill furthers the purposes of Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986. .

The latest version of the bill also adds a requirement that the Governor's Office of Business and Economic Development provide businesses information regarding their obligation to comply with Prop. 65. Hearings are scheduled  in the senate for early July 2017.


Change in Regulations Regarding Notices of Violation

The Office of Environmental Health Hazard Assessment (OEHHA) has proposed two changes in its regulations regarding the contents of the Notices of Violation. The first change is being made to section 25903(b)(2)(E), concerning occupational exposures. Such notices are to contain specific language required by the Occupational Health and Safety Regulations in Title 8, Section 338(b) of the California Code of Regulations; the current version does not cross-reference this section.  


The regulations currently require any Notice of Violation to include a copy of an Appendix A which alerts the target of the notice to the substance of Prop. 65. The option to cure these violations without further liability was added by legislation intended to end the practice of targeting small businesses that are unaware of their potential Prop. 65 liability in order to extract a quick monetary settlement (i.e., drive-by litigation). Instead of placing this compliance procedure with the more general information in Appendix A, OEHHA is proposing to move the language to a new Appendix B. This change is applicable to those situations that are subject to the legislation (a) alcoholic beverages consumed on premises; (b) food or beverages prepared and sold for immediate consumption;  (c) non-employee tobacco smoke on premises where smoking is permitted; or (d) engine exhaust at a facility primarily intended for parking noncommercial vehicles. There are remedial measures that are also required under each scenario.

Hearing on Naturally Occurring Level in Candy Containing Chili/Tamarind

Hearing on "Naturally Occurring" Lead Levels in Candy Containing Chili and Tamarind

The Office of Environmental Health Hazard Assessment (OEHHA) is holding a public hearing in response to a petition from the Center for Environmental Health requesting that OEHHA “commence the regulatory process to issue regulations pursuant to Health & Safety Code §110552 setting a ‘naturally occurring’ lead level in candy containing chili and tamarind.”   the hearing has been rescheduled for July 6, 2017 from 10:00 a.m. to 12:00 p.m. in the Sierra Hearing Room at the CalEPA Headquarters building at 1001 I Street in Sacramento.  The hearing will be webcast at https://video.calepa.ca.gov/(link is external) (not active until the day and time of the hearing).