Earlier this month, a longstanding Proposition 65 bounty hunter sued the California agency that implements the law.  The Mateel Environmental Justice Foundation seeks to invalidate the “safe harbor” level for lead of 0.5 micrograms per day that was set over twenty years ago.  Mateel claims that the level is outdated and lenient.

Because lead has been one of the most commonly targeted chemicals in Proposition 65 enforcement actions, any repeal of the safe harbor level will have wide-ranging impact.  Not only have companies relied on the safe harbor level in developing internal compliance programs, numerous settlements have referenced the level.  Because bounty hunters need only prove that a product exposes users to lead in some quantity, if the state sets no safe harbor level then businesses will have to prove in individual court proceedings what the appropriate level is.  The expense of that task would encourage businesses to avoid the risks of litigation by providing far more lead warnings than are required.

The term “safe harbor” has no relation to the safety of consumers from the threat of a chemical exposure.  Instead, it refers to the safety of businesses from the threat of being sued under Proposition 65.  A business whose products cause exposures below the safe harbor level is deemed to be compliant with Proposition 65 and does not need to provide Proposition 65 warnings.  

The lawsuit challenges what many view as an already exceedingly stringent level for lead.  All safe harbor levels for listed reproductive toxicants like lead must incorporate a 1,000-fold margin factor that is applied to the level already determined by the agency to cause no reproductive effects.  In other words, a product that contains lead at 1,000 times over the safe harbor level still poses no risk of reproductive harm.

In its lawsuit, Mateel questions the validity of the scientific evidence that the agency used to set the safe harbor level in 1992.  Specifically, the agency derived the safe harbor level from the federal Occupational Safety and Health Administration (OSHA) permissible exposure limit for airborne lead in the workplace.  In turn, in setting that permissible exposure limit, OSHA had relied on lead exposure studies, which Mateel claims are inadequate to support the safe harbor level for lead under Proposition 65.  Moreover, Mateel argues that more recent scientific studies now show that there is no “safe” level of exposure to lead and that the agency should consider effects on childhood development.

Lead is listed as both a reproductive toxicant and a carcinogen under Proposition 65.  The safe harbor level of 0.5 micrograms per day is for lead as a reproductive toxicant.  Mateel’s lawsuit does not challenge the safe harbor level for lead as a listed carcinogen, which is 15 micrograms per day.

The lawsuit is pending in Alameda County Superior Court.  It remains to be seen how the state agency will respond to the lawsuit and what other developments might arise as a result of it.