(August 19, 2009) The California Chamber of Commerce continues to fight a state agency’s decision to bypass the longstanding, science-based process for adding chemicals to the Proposition 65 list.
Left unchallenged, the new procedure could affect consumers, manufacturers and distributors of a wide range of common products.
Links to Part 1 and Part 2 of OEHHA’s chemical list appear on the CalChamber home page, www.calchamber.com.
Background
In May 2008, the Office of Environmental Health Hazard Assessment (OEHHA) publicly announced its authority to automatically add certain chemicals to the Proposition 65 list under Labor Code Section 6382(d) (Labor Code Mechanism).
After years of following required statutory procedures specified under Proposition 65 for adding chemicals to the list of “substances know to the state to cause cancer or reproductive toxicity,” OEHHA suddenly changed course. 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 ranging from carpet to cosmetic and personal care products to critical pharmaceutical products.
CalChamber Goes to Court
In an effort to stop OEHHA from listing chemicals pursuant to its flawed interpretation of Labor Code Section 6382(d), CalChamber filed a lawsuit in December 2008, asking the court to rule that OEHHA was exceeding its authority under Proposition 65. Despite CalChamber’s efforts, the trial court ruled in favor of OEHHA.
CalChamber immediately filed its Notice of Appeal and will be seeking review by the 1st District Court of Appeal. CalChamber’s opening brief is due in September.
Hurts Marketplace/Consumers
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.
Therefore, when any new chemical is added to the Proposition 65 list, retailers often will contact their suppliers immediately and request representations that:
- the supplied products do not contain the chemical; or
- within 12 months of listing, the supplier will either reformulate the product to remove the chemical or provide a Proposition 65 warning on the product’s label.
If such assurances are not provided, these retailers will then consider seeking substitutes in the market or eliminate the products from their shelves. This harms consumers by eliminating choice in the marketplace and manufacturers by forcing them to reformulate, provide a warning (whether or not justified) or cease distribution.
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.
Further Action
The CalChamber is encouraging companies to review the list of chemicals proposed for listing, then contact Erika Frank for more information about the case and supporting the court challenge.
Links to Part 1 and Part 2 of OEHHA’s chemical list appear on the CalChamber home page, www.calchamber.com.
Staff Contact: Erika Frank