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.)

Friday, April 20, 2018

Prop 65 Use of IARC Findings for Listing by State is not an Improper Delegation of Authority

The Fifth Appellate District affirmed a judgment from a trial court holding  that Prop 65's definition of hazardous chemicals as including substances identified as such by IARC, an agency of the United Nations does not constitute an improper delegation of authority.

On method for listing  chemicals on the Prop 65 list is whether it is listed as human or animal carcinogens by the International Agency for Research on Cancer (IARC), which is part of the World Health Organization and headquartered in France. 

Monsanto Company and others filed a petition for writ of mandate challenging §6382(b)(1), arguing it is improper for a foreign entity, unaccountable to the citizens of California, to determine what chemicals are known to the state to cause cancer.

The court of appeal held that the procedures by which such listing determinations are made are simply the working details of how to implement the Prop 65's broader policy of notification and warning with respect to carcinogenic compounds. The listing mechanisms themselves are not the fundamental policy decisions underlying the legislation.

Tuesday, April 10, 2018

Proposition 65 - Adoption of No Significant Risk Level for Roundup/glyphosate

This just in from OEHHA on Roundup:

Proposition 65 - Adoption of No Significant Risk Level for Glyphosate

"The Office of Environmental Health Hazard Assessment has adopted a No Significant Risk Level of 1100 micrograms per day for glyphosate. This means that exposures to glyphosate below 1100 micrograms per day are not considered a significant risk of cancer for purposes of Proposition 65 and would not require a warning. Safe-harbor levels help businesses determine when a warning is required for exposures to listed chemicals. Once the warning requirement takes effect on July 7, 2018, businesses with 10 or more employees who cause exposures above the safe harbor level may need to provide warnings. Enforcement of the warning requirement is currently the subject of pending federal litigation that may affect the duty to warn for glyphosate exposures.  See National Association of Wheat Growers et al., v Lauren Zeise, et al. (Eastern District of California, Case # 2:17-cv-02401-WBS-EFB).  A preliminary injunction has been issued in that case prohibiting enforcement of the warning requirement by the California Attorney General and OEHHA.  The case is still pending in the Federal District Court."

Sunday, April 8, 2018

Tentative Ruling Prop 65 Coffee Products/Chocolate Settlement

A Superior Court Judge in the latest in a series of Prop 65 cases involving coffee industry has tentatively ruled that the Prop 65 warnings are required. CERT  v. Starbucks.( LA Ct. NO. BC435759). The chemical at issue, Acrylamide, is formed in coffee beans during the roasting process and is  then introduced  into coffee itself when the coffee is brewed. These cases are derived from several cases that were filed against 91 defendant coffee sellers. Several of the defendants have settled both before and during the trial.

The trial was divided into three phases. During earlier phases the Judge ruled that there was no first amendment right related to the warning, that there was no federal preemption, and that the levels in coffee , were not below the “no significant risk” safe harbor level established by regulation.

The tentative ruling addresses in part the question of whether the beneficial effects of coffee outweigh the need to warn for potential cancer impacts. Defendants argued that they can take advantage of an “alternative” safe harbor exposure risk level ( [Title 27 section 25703(b) of the California Code of Regulations), which lays out the required procedure for conducting a “quantitative risk assessment” to establish a safe harbor for a Prop. 65 listed carcinogen.

The trial court has tentatively held that the defendants could not meet the requirements of this section  as  the risk assessment according to the court  looked at acrylamide exposure generally and not at exposure to acrylamide in coffee products. 

The defendants have until April 10 to respond to the tentative ruling. If the ruling is not reversed or modified the next phase in the trial would be the calculation of penalties. Some distributors have already begun including the warning to cut off potential liability.

Chocolate Products Settlement.

In additional Prop 65  news a San Francisco Superior Court  approved a settlement of a lawsuit alleging that manufacturers of certain chocolate products were required  to provide Proposition 65 warnings as the products allegedly contained levels of cadmium and lead above the safe harbor levels for those elements.

The settlement  requires manufacturers to provide warnings based on the levels of the two substances in their products. The settlement also requires the  parties to establish a panel that will study the origin of the contamination and will make recommendations that could require warnings at lower or higher levels of the two substances. As You Sow v. Trader Joe’s, Consent judgment, 548791.

 The total settlement was $925,875, which includes; Civil Penalty: $22,000.00 Attorney(s) Fees and Costs: $900,000.00 and Payment in Lieu of Penalty: $3,875.00.  The settlement includes  language that allows other manufacturers or sellers of chocolate products to join in the settlement by accepting its terms.

Each of the defendants must provide a Prop. 65 warning on their products one year after the effective date of the settlement- if the products exceed initial levels specified for each product category. After seven years those levels will be reduced to  levels specified in the settlement. Those levels are to be modified to be consistent with any of the trigger levels recommended by the expert panel. The  language for the warnings is specified in the settlement.