This August, new amendments to the California Safe Drinking Water and Toxic Enforcement Act of 1986, aka Proposition 65, will be in force. The law requires companies to label products with warnings if they contain any of the chemicals the state Office of Environmental Health Hazard Assessment (OEHHA) identifies as causing cancer, birth defects, or other reproductive harm. The list, which currently includes over 900 chemicals, is updated once a year.
In 2016, new amendments to the law were proposed, and their final versions will go into effect on August 30, 2018. In addition to the amendments, some new legal developments may affect the enforcement of Proposition 65 this year.
The 2018 update: New warning labels that call out specific chemicals
The biggest overall impact of the new amendments will be the requirement for warning labels that call out the specific chemical(s) the product contains.
Currently, the warnings are general: “WARNING: This product contains chemicals known to the State of California to cause cancer and birth defects and other reproductive harm.”
Starting in August, the warnings will require companies to identify the chemical in question: “WARNING: This product can expose you to [name of chemical], which is known to the state of California to cause cancer.” The warning label must also point consumers to a website where they can find more information.
In a Q&A with Packaging Digest, lawyer Mitzi Ng Clark notes that this new requirement poses additional challenges because: “Unlike the existing warning regulations, the new regulations present the possibility of manufacturers to face liability even when a warning is provided because there is, arguably, a lot of potential for error.”
Clark also notes that liability under Proposition 65 is complicated, because any private individual can enforcement, and also that “the stakes are high.” More than $167 million in penalties were levied against companies just last year.
Coffee could get a warning label
One beverage that could soon start coming with an unexpected warning label is coffee. When coffee beans are roasted, the process creates acrylamide, a chemical that has been on the Proposition 65 list since 1990.
In 2010, a lawsuit was filed alleging that Starbucks, 7-Eleven, and several other companies failed to provide the require warnings about acrylamide in coffee. The ultimate goal is for the companies to reduce the amount of acrylamide in their products, similar to what Heinz, Frito-Lay, and other potato chip and french fry manufacturers did in 2008 (acrylamide is also found in potatoes). A decision in the coffee case is expected soon.
Caramel-colored beverages (e.g., soda) may also be hit hard by the new labeling requirements. That’s because many beverages are colored with furfuryl alcohol, which Proposition 65 lists as having no safe level of consumption. Furfuryl alcohol was officially added to the list in September 2016 and its one-year grace period ran out in September 2017. So, while a warning is already required, the new upgraded warning might be a surprise to California consumers.
Glyphosate: The battle is postponed
Glyphosate, a commonly used herbicide (the active ingredient in the weedkiller Roundup), was placed on the Proposition 65 list in July of 2017. That means its grace period runs out in July of this year. Currently, the need for a warning label is being hotly contested.
After the chemical was placed on the Proposition 65 list, Monsanto and various farm groups sued California to stop the state from requiring warnings on products, like corn and wheat, on which glyphosate is used. The companies argued that the warning labels amounted to “false, misleading, and highly controversial statements.”
Earlier this week, a federal judge agreed, granting an injunction that keeps glyphosate on the Proposition 65 list, but bars enforcement of the warning requirement. At least for now. Regulators are expected to set an allowable threshold for glyphosate later this year.
Lead and cadmium in chocolate: More research needed
This month also saw the settlement of a longstanding California Superior Court case of whether lead and cadmium levels in chocolate require warnings under Proposition 65. Consumer advocacy group As You Sow had filed complaints against more than 20 chocolate companies following the results of laboratory tests showing lead and/or cadmium levels that the group said were above the allowed thresholds.
For the settlement, As You Sow and the chocolate companies agreed to a joint study to investigate the sources of the chemical elements in chocolate and what measures can be taken to reduce them.