Mateel Environmental Justice Foundation, which has a long history as a Proposition 65 plaintiff, filed a writ petition earlier this week seeking to challenge and rescind the “safe harbor” level for lead under Proposition 65.  Mateel Environmental Justice Foundation v. California Office of Environmental Health Hazard Assessment, et al., No. RG15754547 (California Superior Court, Alameda County).  The action has potential consequences for a wide range of industries that manufacture or distribute consumer products sold in California that may contain trace levels of lead.

Proposition 65, officially known as the Safe Drinking Water and Toxic Enforcement Act,[1] was enacted by voter initiative in 1986.  The statute prohibits companies that have 10 or more employees and do business in California from “knowingly and intentionally expos[ing] any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual.”[2]  The California Office of Environmental Health Hazard Assessment (OEHHA) has published and periodically updates a list of chemicals that are “known to the state to cause cancer and reproductive toxicity,” which are commonly referred to as “listed chemicals.”  There are more than 500 chemicals on OEHHA’s list.[3]  Enforcement is allowed by private individuals and groups, in addition to government entities, and recovery may include a percentage of penalties as well attorneys fees and costs.

Companies with products that are sold in California and contain a listed chemical must provide consumers with a Proposition 65 warning regarding potential exposure unless there is an applicable exemption:  Federal warning requirements that preempt state law; in the case of food products, the chemical is “naturally occurring;” the exposure poses no significant risk of cancer, assuming lifetime exposure at the level in question; or the exposure will have no observable effect for reproductive toxicity, assuming exposure at 1,000 times the level in question.[4]  For certain listed chemicals, OEHHA has established No Significant Risk Levels (NSRLs) and Maximum Allowable Dose Levels (MADLs) that provide a “safe harbor” from Proposition 65 warning requirements if risk analysis shows potential exposures are below the applicable standard.[5]  For lead, OEHHA established a “safe harbor” of 0.5 micrograms per day.[6]

Now, more than 20 years after OEHHA adopted this standard, Mateel seeks to rescind it.  In so doing, the writ petition acknowledges the statutory basis and OEHHA’s authority to establish “safe harbor” levels under Proposition 65.  The petition contends, however, that OEHHA’s original basis for establishing a “safe harbor” of 0.5 micrograms per day was not valid, and that subsequent studies have concluded that “there is no threshold exposure level below which the neurodevelopmental toxicity of lead cannot be seen to occur.”  The petition complains that many companies rely on this exemption, and that OEHHA’s maintenance of the safe harbor “frustrates and unduly complicates Mateel’s program goal of enforcing Proposition 65 and reducing the exposure of California residents to lead.” 

This attempt to rescind the Proposition 65 “safe harbor” for lead has potential consequences for a wide range of industries and consumer products.  Over the past 25 years, Proposition 65 claims brought for alleged failure to warn of exposure to lead have included vinyl components and coatings, glassware, crystal, ceramicware, brass keys and fittings, galvanized fasteners, jewelry, foods and supplements, and a variety of other products and product components.  Without the “safe harbor,” companies could be required to provide warnings for even trace amounts of lead in products sold in California.  We expect affected companies, industry groups and trade associations will seek to intervene or file amicus briefs in this writ proceeding.