1. State Attorney General Proposes Regulatory Changes to Curb Lawsuit Abuse
In 2014, businesses paid more than $29 million in settlements last year related to California Proposition 65. Of that total, $21 million went for attorney fees and costs. Attorney General Kamala Harris has proposed a series of regulatory changes to Proposition 65 intended to curb frivolous lawsuits. The proposal seeks to ensure that a greater share of civil penalties paid by businesses go to fulfilling the law's purpose of protecting public health. The change proposed by Harris would require private enforcers of the law --- mainly environmental and consumer groups --- to better define and report how they will spend settlement payments. The rule also proposes to cap "in lieu of penalties" payments paid by businesses, so that a greater share of the fines go to the Office of Environmental Health Hazard Assessment (OEHHA), which administers Proposition 65.
2. Proposed Amendment to Lower the Lead (Pb) Maximum Allowed Dose Level in Consumer Products
OEHHA issued another pre-regulatory proposal, drafted in response to a petition by the Center for Environmental Health, a frequent Proposition 65 plaintiff, to amend the safe harbor level for lead. The proposal would lower the lead limit below its current value, which is already below federal actionable levels. In fact, it would lower the maximum allowable dose level (MADL) by 60% from 0.5 μg to 0.2 μg. If this rule is adopted, additional products would become subject to warning requirements.
3. Proposed Amendment on Use of Arithmetic Mean to Calculate Safe Harbor Levels
OEHHA, which has the authority to adopt regulations for safe harbor levels for listed chemicals, announced that it is considering amending the existing regulation to clarify that the reasonably anticipated rate of intake or exposure to a listed chemical must be calculated as the arithmetic mean of daily intake or exposure for product users. OEHHA provided draft regulatory language and explanatory information for possible amendment.
Geometric means are routinely used to log normal distribution of food intake and exposure assessments. FDA and even OEHHA documents describe the use of geometric means rather than arithmetic means. Limiting the calculation to the arithmetic mean could cause over-warning since arithmetic mean does not account for skewed data and would return higher results. Companies will be forced to label their products with the Proposition 65 warning when there is minimal risk. The proposal would counter an appellate court's ruling in Environmental Law Foundation v. BeechNut Nutrition Corp., which held that the geometric mean was more appropriate than the arithmetic mean when calculating the reasonably anticipated rate of intake for average users of food products in that case.