March 24, 2009

Court of Appeal Leaves Proposition 65 Questions Unanswered in Narrow Win for Food Industry

Arnold & Porter Advisory

In a closely watched case, the California Court of Appeal has narrowly upheld the trial victory of food companies against the California Attorney General's charge that Proposition 65 warnings are required for methylmercury in canned tuna. People ex rel. Edmund G. Brown, Jr. v. Tri-Union Seafoods, LLC, No. A116792 (March 11, 2009). Disappointing observers, the Court declined to reach two key legal issues for consumer product manufacturers: (1) the degree of action by a federal agency necessary to preempt Proposition 65 in a specific context, and (2) whether it is appropriate, for a chemical listed as causing birth defects, to average exposures over time rather than measuring one-time exposures. Instead, the Court simply declined to disturb the narrow factual finding that virtually all of this chemical in canned tuna is "naturally occurring" and therefore exempt from Proposition 65 (Prop 65). The ruling is significant because it shows that it is possible for industry to win a Proposition 65 case at trial, and then on appeal, especially where it has strong scientific evidence to support its claim.


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