A California appeals court has affirmed a lower court ruling that Proposition 65 (Prop. 65) requires an annual update of the list of toxic and carcinogenic substances using the method set forth in Prop. 65. Cal. Chamber of Commerce v. Brown, No. A125493 (Cal. Ct. App. 6/6/11). The voter-approved Safe Drinking Water and Toxic Enforcement Act of 1986, Health and Safety Code Section 25249.5 et seq., also known as Prop. 65, requires the state to annually publish a list of chemicals known or suspected to cause cancer or reproductive toxicity.

The California Chamber of Commerce argued that the method for adding chemicals to the Prop. 65 list was “frozen in time” and only those chemicals included at the time of enactment could be listed. Plaintiff also alleged that the state’s Office of Environmental Health Hazard Assessment (OEHHA) exceeded its authority by using Prop. 65’s method of including by reference chemicals identified in Labor Code section 6382, which is part of the Hazardous Substances Information and Training Act and sets forth criteria for the preparation and amendment of a list of “hazardous substances” in the workplace.

The lower court and then the appeals court ruled that the method used by OEHHA and set forth in Prop. 65 was “required by law,” and therefore rejected plaintiff’s arguments. According to the appeals court, “[H]eeding the remedial purposes of [Prop. 65] and the mandate that it be broadly construed, . . .the Prop. 65 list not only can, but must be updated.”