California’s Office of Environmental Health Hazard Assessment (OEHHA) announced that effective December 4, 2015, “Aloe vera, non-decolorized whole leaf extract and Goldenseal root powder” will be added to the list of chemicals known to the State of California to cause cancer for purposes of California’s Proposition 65 (“Prop 65”). According to OEHHA, “Aloe vera, non-decolorized whole leaf extract consists of the liquid portion of the Aloe vera leaf and is a natural constituent of the Aloe barbadensis Millerplant.” OEHHA also specifies that “Goldenseal root powder is a natural constituent of the goldenseal plant (Hydrastis Canadensis)”.
Once a chemical is listed under Prop 65, businesses have 12 months to comply with warning requirements or phase out use of the listed chemical. Any product that exposes California residents to a Prop 65-listed chemical must provide a “clear and reasonable” warning that the product contains a chemical known to the state of California to cause cancer or reproductive toxicity. While Aloe vera is commonly used in food, nutritional supplements, and personal care products, most companies use plant derivatives not implicated by the listing. Time will tell whether the plaintiffs’ lawyers who have made a cottage industry out of issuing Prop 65 Notices of Violation and filing follow-on lawsuits will understand, let alone heed, this distinction.
Thirty-five sets of comments were submitted in response to OEHHA’s Notice of Intent to List “Aloe vera, whole leaf extract” under Proposition 65, several of which noted deficiencies in the underlying International Agency for Research on Cancer (IARC) study which triggered the listing. In response, OEHHA stated that it would not consider comments relating to the underlying scientific basis for IARC’s classification of Aloe vera non-decolorized whole leaf extract as causing cancer. Instead, pursuant to the Labor Code section that triggered the listing, once IARC classified the ingredient as possibly carcinogenic to humans, OEHHA had no choice but to add it to the Prop 65 list. The agency saved for another day consideration of the level of exposure that would trigger the requisite Prop 65 warning.