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.)

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).