February was a busy month in the Proposition 65 world with two developments that may impact businesses that manufacture or sell processed meat or chocolate products. In addition, the United States District Court for the Eastern District of California held that the State cannot require Proposition 65 warning requirements for glyphosate on herbicide products such as Roundup weed killers because there is insufficient evidence to conclude that glyphosate causes cancer. Nat’l Ass’n of Wheat Growers v. Zeise, 2018 WL 1071168 (E.D. Cal. Feb. 26, 2018).
California’s Proposition 65, also known as the Safe Drinking Water and Toxic Enforcement Act of 1986—or “Prop. 65”—prohibits businesses from releasing chemicals “known to the state to cause cancer or reproductive toxicity,” and from exposing people to chemicals on the Prop. 65 List without providing “clear and reasonable” warnings. Chemicals can be added to the Prop. 65 List based on California’s analysis of current scientific information and in situations where, as determined by other outside entities including the United States Environmental Protection Agency (USEPA) and the International Agency for Research on Cancer (IARC), a substance is a human carcinogen.
California Resolution Introduced to Add Processed Meat on Prop. 65 List
In the first major development, California State Senator Ricardo Lara (D-Bell Gardens) introduced Senate Concurrent Resolution (SCR) 100 on February 12, 2018. SCR 100 would require the Office of Environmental Health Hazard Assessment (OEHHA), the lead agency for implementing Prop 65, to add “processed meat (for consumption)” to the Prop. 65 List because the IARC formally listed “processed meat (consumption of)” on its list of “Agents Classified by the IARC Monographs” as “carcinogenic to humans (Group 1).” SCR 100 broadly defines processed meat as any meat that has been “transformed through salting, curing, fermentation, smoking, or other processes to enhance flavor or improve preservation,” and would apply to beef, pork and poultry products such as hot dogs, bacon and deli meat. OEHHA has not yet taken action on SCR 100.
State Court Settlement Establishes Thresholds for Lead and Cadmium in Chocolate
Separately, on February 15, 2018, the Superior Court for the County of San Francisco approved a settlement regarding the levels of lead and cadmium in chocolate that require Prop 65 warnings. For years, a debate has unfolded regarding whether chocolate contains levels of lead and cadmium that can be dangerous for human consumption. Chocolate manufacturers have argued that products may contain trace amounts of the chemicals, but it is a result of naturally occurring absorption in cacao plants. The settlement announced on February 15th requires a joint study to evaluate the main sources of lead and cadmium in chocolate products. The hope is that the study’s findings will lead to the development of measures that can be taken to reduce lead and cadmium in chocolate. The settlement also establishes interim thresholds or warning levels to help determine when a Prop. 65 warning will be required in chocolate products for lead and cadmium. In addition, the court authorized an “opt-in” program under the agreement, which will allow other businesses that make or sell chocolate products in California to become parties to the settlement if the business is willing to comply with the terms of the settlement agreement. Defendants already covered under the agreement include Barry Callebaut (USA), Blommer Chocolate Co., Cargill, Inc., Guittard Chocolate Co., The Hershey Company, Lindt & Sprungli (North America), Mars Incorporated, Mondelez Global LLC, and Nestle USA, Inc.
U.S. District Court Holds Herbicide Prop. 65 Warning for Glyphosate is Misleading
On February 26, 2018, the United States District Court for the Eastern District of California held that California cannot require Prop. 65 warnings on herbicide products containing glyphosate because there is insufficient evidence to conclude that it causes cancer. Nat’l Ass’n of Wheat Growers, 2018 WL 1071168 at *7. In 2015, IARC classified glyphosate as “probably carcinogenic” to humans. However, other entities including USEPA concluded that there is no evidence that glyphosate causes cancer. Despite USEPA’s position on the issue, because of IARC’s classification of glyphosate as probably carcinogenic, OEHHA added glyphosate to the Prop. 65 List on July 7, 2017.
Monsanto, the manufacturer of the popular herbicide product known as Roundup and several farming associations challenged OEHHA’s listing based on the First Amendment to the United States Constitution. Although the court’s decision dealt with the plaintiffs’ motion for a preliminary injunction, the court still held that the plaintiffs had a substantial likelihood of success on the merits of their action, and pending final resolution of the matter, the State cannot require the plaintiffs to include a Prop. 65 warning for glyphosate on their herbicide products. The court explained that based on the evidence before the court, “the required warning for glyphosate does not appear to be factually accurate and uncontroversial because it conveys the message that glyphosate’s carcinogenicity is an undisputed fact, when almost all other regulators have concluded that there is insufficient evidence that glyphosate causes cancer.” Citing USEPA’s conclusion that there is no evidence that glyphosate causes cancer, the court then reasoned that it is “inherently misleading for a warning to state that a chemical is known to the state of California to cause cancer based on the finding of one organization (which . . . only found that substance is probably carcinogenic)[.]” Accordingly, the plaintiffs established a likelihood of success on the merits that California’s Prop. 65 warning requirement for glyphosate violated their First Amendment rights. Id.
Monsanto and California Citrus Mutual separately challenged OEHHA’s listing of glyphosate in state court, which is currently before California’s Fifth Appellate District Court of Appeal after the Fresno County Superior Court dismissed the case. Although it is not yet clear whether the federal district court’s decision will have any impact on the state court challenge, the federal district court’s opinion could provide the basis for future challenges in the Prop. 65 enforcement arena where entities such as USEPA and IARC do not agree whether a chemical substance causes cancer.
For assistance in complying with Prop. 65 enforcement matters, please contact us.