(March 22, 2010) The California Chamber of Commerce is continuing its challenge in court against a state agency’s flawed decision to bypass the longstanding, science-based process for adding chemicals to the Proposition 65 list.
If not overturned, the procedure adopted by the state Office of Environmental Health Hazard Assessment (OEHHA) could affect consumers, manufacturers and distributors of a wide range of everyday products ranging from carpet to cosmetic and personal care products, as well as critical pharmaceutical products.
This week, the CalChamber filed its response to the attorney general’s defense of OEHHA. In November 2009, the CalChamber had asked California’s 1st District Court of Appeal to reject the OEHHA process supported by the trial court over the protests of the CalChamber and others.
Background
OEHHA publicly announced in May 2008 that it has authority to automatically add certain chemicals to the Proposition 65 list under Labor Code Section 6382(d) (Labor Code Mechanism).
The announcement was a sudden change of course for OEHHA after years of following required statutory procedures specified under Proposition 65 for adding chemicals to the list of “substances known to the state to cause cancer or reproductive toxicity.”
Under its newly adopted erroneous interpretation of Proposition 65, OEHHA will list chemicals without review from the state’s qualified experts, and without any process to take into account scientific information about the chemical.
Despite comments submitted by numerous entities, including CalChamber, objecting to OEHHA’s interpretation of Labor Code Section 6382(d), on June 12, 2009, OEHHA published a list of 30 chemicals it proposes to list under the Labor Code Mechanism. Many of these chemicals are elements in everyday products such as those cited above.
Listing Ramifications
Adding any chemical to the Proposition 65 list triggers a cascade of activity and consequences. Listings have an impact on the entire chain of commerce, from the manufacturer, to the retailer and finally, to the consumer.
For example, retailers frequently are sued under Proposition 65 based on alleged violations arising from merely selling products that are manufactured by others and that contain some amount of a listed chemical.
In response to litigation, retailers have adopted a number of approaches to protect themselves from the burdens and uncertainties associated with Proposition 65 enforcement actions, including seeking assurances from suppliers that their products comply with Proposition 65.
From the moment a chemical is listed, products containing such chemicals are stigmatized, leading to immediate market pressure to reformulate or lose customers to substitute products. It is for this reason that Proposition 65 requires a scientific review of all chemicals before listing—a review that is not required under the Labor Code Mechanism.
CalChamber Argument
In its latest brief, the CalChamber points out to the appellate court that OEHHA’s less stringent approach to listing Proposition 65 chemicals conflicts with the language of the law, the agency’s past practices and the ballot arguments presented to the voters before the measure was approved.
“Indeed, voters were promised that the laws enacted by Proposition 65 would provide Californians with higher scientific standards than ‘any existing toxics law,’” the CalChamber argues. “This language does not support the continued, uncontrolled listing of substances identified pursuant to different toxics laws.”
Chemical List
Companies can find the list of chemicals proposed for listing via the CalChamber.com home page links to Part 1 and Part 2 of OEHHA’s chemical list.
More information about the case and supporting the court challenge is available from Erika Frank, CalChamber general counsel.
Staff Contact: Erika Frank