April 1, 2015

California Appellate Ruling May Settle Several Prop 65 Questions for Businesses

Seller Beware: Consumer Products Insights for Industry

In a highly anticipated ruling, the California Court of Appeal affirmed a trial court's ruling, discussed here that canned fruit and fruit juice companies had no duty to provide warnings for lead under Proposition 65 because they proved that the average consumer’s reasonably anticipated rate of exposure fell below the warning threshold. Environmental Law Foundation v. Beech-Nut Nutrition Corp. (Cal. App. March 17, 2015). The decision is not yet final, and the Environmental Law Foundation may petition for review to the California Supreme Court. It nevertheless may settle several outstanding questions that have been the subject of much debate and concern for businesses selling consumer goods in the almost thirty years since Proposition 65 was adopted.

The ruling endorsed several key points:

  • First, the "average" consumer's exposure can be based on the geometric mean as opposed to the arithmetic mean or some other measure, such as the 85th percentile. Public health agencies often use the geometric mean because it reduces the amount by which individual outliers (e.g., heavy users) skew the average.
  • Second, consumption data in the federal government's NHANES database, a database that identifies the amount consumed per occasion, and the NET database, indentifying the frequency of consumption, can be combined to determined an average consumption amount. This provides a consistent source of well-respected data upon which to base the calculations.
  • Third, the amount of a contaminant (such as lead) in products can be based on an average concentration of lead across a number of units. Plaintiffs had suggested that the amount should be based on individual products, so that one high reading in a single can of peaches could be a violation. That would be unworkable especially where lead content, like in many products, is variable across different units of the product.
  • Fourth, exposure assessments for reproductive toxins can be based on a consumption period over multiple days rather than on the single day period urged by Environmental Law Foundation. Here, the court endorsed a 14-day period based on the toxicology of lead.
  • Fifth, the safe harbor maximum allowable dosage level (MADL) of 0.5mcg/day can be applied to exposure assessments that cover more than a one-day exposure period. This has long been the position of the business community, and had not previously been questioned in court, but it was challenged by the California Attorney General in an amicus brief.

The Beech-Nut ruling was fundamentally premised on deference to the trial court as to the factual and expert testimony in the case. Nonetheless, it is the first complete judicial roadmap for navigating the complex scientific and regulatory framework of Proposition 65 on these issues. In doing so, it provides much needed guidance to businesses seeking to reduce the risk of Proposition 65 litigation.

It remains to be seen whether this ruling will the final word on all of these issues. Further review by the California Supreme Court is possible. In addition, as we have previously reported, prior to the appellate ruling, another bountyhunter sued the state agency that implements Prop 65 seeking rescission of the 0.5 mcg/day safe harbor level for lead.

© Arnold & Porter Kaye Scholer LLP 2015 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.


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