One day after the California Office of Environmental Health Hazard Assessment (OEHHA) issued notice of its proposal to repeal the existing Proposition 65 warning regulations and replace them with new regulations, OEHHA was sued in California Superior Court for a writ of mandate and declaratory relief. The action was filed by veteran Proposition 65 enforcer “Mateel Environmental Justice Foundation” (Mateel).
For decades, Proposition 65 defendants have defended claims on thousands of products alleged to require warnings due to lead content. Now, Mateel seeks to eliminate any safe harbor for (alleged) lead exposures. Simply put, this enforcer aims to require warnings on any product – foods, consumer goods, personal care products, electronics, toys – where lead can be detected. Plaintiff’s theory is that science does not support any “safe” level of lead exposure within the meaning of Proposition 65 and thus all exposures to lead will require Proposition 65 warnings.
Specifically, Mateel’s lawsuit challenges the existing regulatory safe harbor warning trigger level for lead of 0.5 micrograms (ug) per day. Mateel challenges both the scientific and legal support for OEHHA’s original decision in 1992 to set the 0.5 ug/day standard, as well as OEHHA’s refusal to modify and lower (to zero) the warning trigger level for lead in the years since. Mateel’s lawsuit is potentially very significant.
Over time, lead has been one of the most frequently cited chemicals in Proposition 65 notice of intent to sue letters. Last year, 1,394 Proposition 65 notice letters were issued and 412 focused on exposures to lead, or lead and lead compounds. If Mateel is successful, then plaintiff enforcers like Mateel could try to use any detectable amount of lead, no matter how small, to support a notice letter and a lawsuit against a company. Given Proposition 65’s unique shifting of the burden of proof to the defendant, the relief Mateel seeks could open the doors to more unnecessary litigation, more burden on our overtaxed court system, more shifting of wealth to the coffers of the “citizen enforcers” and their counsel, and more consumer confusion as Proposition 65 warnings proliferate and cover products identically whether there is an infinitesimal exposure or a large exposure. If Mateel succeeds, it or other plaintiffs also may attempt to reopen existing Proposition 65 consent judgments governing warning terms for lead in a huge range of products.
Mateel filed its lawsuit in Alameda County, instead of Sacramento county. OEHHA will be represented by the California Office of the Attorney General. The Attorney General’s Alameda Office is responsible for oversight and enforcement of the Attorney General’s Proposition 65 enforcement regulations. OEHHA’s response to the petition likely will be due next month.