CMBG3 Law previously reported on Mateel Environmental Justice Foundation’s (Mateel), an environmental watch group, efforts to urge the California Appeals Court to Office of Environmental Health Hazard Assessment (OEHHA) to repeal the regulatory limit of .05 micrograms of lead per day for drinking water. The .05 micrograms level was previously established by the OEHHA under Prop 65 as the permissible level for drinking water in California. 

As part of its appeal, Mateel also argued to the California appeals court that Proposition 65 requires companies to warn consumers that products contain any amount of lead, as the state’s adopted safe level for lead was set using impermissible methods under California law. At issue was the “safe harbor” exemption under Prop 65 for toxins that fall below trace exposure levels. The statute requires that the state’s Office of Environmental Health Hazard Assessment (OEHHA) conduct rigorous scientific study to show that that the safe harbor number, if multiplied by 1,000, would still have “no observable effect.” Mateel argued that instead of following the proper procedure and conducting its own investigation to determine a safe harbor level for lead, the OEHHA simply copied the federal level for the maximum allowable amount of lead in a workplace that was adopted by OSHA. Mateel argued that the process used by OSHA to determine a permissible exposure limit for lead did not amount to the more rigorous investigation required under Proposition 65.  The California appeals court disagreed, finding that the studies that the OEHHA relied upon “appear comprehensive, scientifically appropriate, and indeed, cutting-edge at the time.”

This issue is just the latest in the ongoing battle being waged in California over chemicals listed on the Prop 65 list. The costly and prolonged litigation is a reminder for any company (of any size) doing business in California that it must be aware of the Prop 65 regulations and ensure that products sold in California comply with Prop 65 requirements. Failure to comply with the regulations can lead to steep penalties. 

CMBG3 Law LLC has represented clients in products liability matters, especially with respect to warning label issues, for many years. Our attorneys in California are well-versed on Prop 65 issues and requirements. We provide the most current legal advice to our clients by staying on top of developments in science, medicine, and regulations regarding a wide variety of substances and products used by consumers every day. If you have any questions or would like more information, please contact Christine Calareso (email her or 949-467-9605), Gilliam Stewart (email him or 415-957-2322), or John Gardella (email him or 617-279-8225).