United States: California's Prop 65: More Form Over Substance

Last Updated: August 2 2017
Article by Daniel J. Herling

California's Safe Drinking Water & Toxic Enforcement Act of 1986 (affectionately known as "Proposition 65") has long been the subject of discussion, both pro and con. Much of the conversation is on various issues surrounding the enforcement of Proposition 65 (for example, see a prior post here). In March 2017, a California trial court in Monsanto Co. v. Office of Environmental Health Hazard Assessment ("OEHHA"), No. 16-CE CG 00183, addressed a much more basic issue: should a chemical – here Glyphosate, a key ingredient in Monsanto's Round-Up® product – even be on Prop 65's list of cancer-causing chemicals?

To put the issue in context:

  1. There are four ways for a chemical to be added to the Prop 65 list. The four ways are specifically delineated on the OEHHA website at: OEHHA.ca.gov\proposition-65\general-info\proposition-65-plain-language.
  2. In 1987, the year the list was first published, there were 30 chemicals on it. Today, there are over 900.
  3. The second way for listing a chemical on the Prop 65 list is if an organization designated as an "authoritative body" has identified the chemical as causing cancer or birth defects or other reproductive harm. One such authoritative body is the International Agency for Research on Cancer ("IARC").

Monsanto argued that OEHHA violated several provisions of the California and Federal constitutions in listing Glyphosate as a Prop 65 chemical. The trial court rejected each of Monsanto's claims. First, it rejected the allegation that OEHHA violated the State constitution by delegating its authority to the IRAC and relying on its assessment that Glyphosate is a probable human carcinogen.

On that point, the court stated:

"the ... listing mechanism does not constitute an unconstitutional delegation of authority to an outside agency, since the voters and the Legislature have established the basic legislative scheme and made the fundamental policy decision with regard to listing possible carcinogens under Proposition 65."

The court characterized IARC's determination as a "highly-technical, fact-finding decision" with regard to whether the herbicide Glyphosate would be added to the list.

Second, the court rejected Monsanto's due process claims by stating that OEHHA's decision is not subject to due process because it is a "quasi-legislative act."

Finally, the judge also gave short shrift to Monsanto's claim that listing Glyphosate would violate its right to free speech under the California and Federal constitutions because such a listing would force it to include a warning label regarding the possible cancerous effects of Glyphosate. The company had argued that such a warning would be false and misleading and would not advance any legitimate or substantial government interest. Monsanto also noted that the U.S. EPA and the European Food Safety Authority ("EFSA") had determined that Glyphosate does not cause cancer. Judge Capetan adopted the California Attorney General office's argument that Monsanto's First Amendment claim was not ripe for adjudication because the mere listing of Glyphosate does not require Monsanto to provide a warning and that it may never be required to give such a warning.

The judge claimed that OEHHA has the discretion to determine that Glyphosate posed no significant risk of causing cancer even if Glyphosate is placed on the Proposition 65 list.

This reasoning questions whether either the State AG's office or the judge has read the OEHHA website on Prop 65, which states: "Businesses are required to provide a 'clear and reasonable' warning before knowingly and intentionally exposing anyone to a listed chemical. Once a chemical is listed, businesses have twelve months to comply with warning requirements."

The trial court's decision was not only appealed, but Monsanto also requested that OEHHA be stayed from listing the chemical as cancer causing. That request was denied – although Monsanto's appeal is still pending in California's Fifth District, the State Supreme Court rejected Monsanto's request that the ruling in question be delayed while the appeal is sorted out.

"Monsanto's challenge was unsuccessful in the trial court," OEHHA said in its statement. "Although the case has been appealed, no stay of the listing has been granted. Therefore, glyphosate is being added to the Proposition 65 list on July 7, 2017."

Under Prop 65 enforcement, the Attorney General's office or citizen enforcers merely need to show that the listed chemical is contained in the product. Once that showing is made, the burden of proof shifts to the defendant to raise affirmative defenses including, but not limited to, whether the Glyphosate falls within safe harbors regarding the exposure to cancer-causing chemicals that have been determined by the OEHHA, if any.

The practicality of placing a chemical on the list necessarily results in Monsanto potentially facing Prop 65 cases asserting claims within one year from the time that Glyphosate is placed on the Prop 65 list (i.e., July 7, 2017), if Round-Up® does not include a Proposition 65 warning regarding cancer.

One take-away from the trial court's decision and the subsequent decisions regarding the stay rejection is that: Irrespective of any legitimate scientific debate whether a chemical actually causes cancer or birth defects or other reproductive harm, if the OEHHA process is followed, businesses will have to warn or else face the myriad enforcement issues created by Prop 65.

This decision adds another data point to the argument that Proposition 65 appears to be more about form than substance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Daniel J. Herling
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions