The substantial recent decision in a Prop 65 appeal highlights risk for businesses under California’s Proposition 65 as it applies to the upcoming deadline to come into compliance with clear and reasonable warning labels.  In the case of “Mateel Environmental Justice Foundation v. Office of Environmental Health Hazard Assessment” the primary issue was the level of lead required to constitute a risk of cancer or reproductive risk under California’s Proposition 65.  Mateel originally asserted in a 2015 case that the Office of Environmental Health Hazard Assessment (OEHHA) had overstated the numbers relating to the established safe harbor quantities for lead under it’s Proposition 65 hazardous chemicals list.  The trial court in that matter denied Mateel’s petition resulting in the filing of an appeal.

In their appeal, Mateel’s general argument was the OEHHA numbers for lead violated Proposition 65 because the numbers were based upon adoption of OSHA’s federal maximum for lead in the workplace which is based upon a “permissible exposure level” which is not as stringent as California’s “no observable effect” standard.  Mateel argued a 2015 case had established Prop 65 safe harbor exceptions based upon a calculation of average exposure over two weeks rather than average daily usage.  Therefore, Mateen argued, the dose level of .05 micrograms per day could be multiplied by a factor of 14 and still remain within safe harbor and the OHEEA had abused it’s discretion in establishing Prop 65 warning exemptions based upon OSHA’s “permissible exposure limit.”

The apellate court held the OHEEA did not abuse its discretion in relying on a federal safety standard in determining maximum safe levels for exposure to lead.  The court found the record failed to support Mateel’s claim that the standard adopted by OEHHA was “arbitrary, capricious, or entirely lacking in evidentiary support.”

This decision in a Prop 65 appeal highlights risk for businesses in California and illustrates the genuine financial consequences of Proposition 65’s clear and reasonable warning requirements carry for any business who produces, manufactures, distributes or sells commercial or consumer products in the State of California.  On their own, the vast majority of California businesses do not have the financial resources or power to defeat the OHEEA and plaintiff’s attorneys.  In these cases, the defendant risks not only Prop 65 fines of $2,500 per day for non-compliance but the payment of all of the plaintiff’s attorneys fees (as well as their own defense).

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