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14

News & Views Magazine

Edition 1, 2015

green waste composting operations. However, it initially

included food processors into the proposed regulation

as well. The early iterations of the proposed regulations

would have made land application costly and impractical

in many cases.

CLFP requested an exemption for food processors from

the onerous new requirements as land application is

already regulated by the Regional Water Quality Control

Boards. The agency formally released a revised draft

proposal for public comment on April 21, 2015 that

largely address CLFP’s concerns.

Proposition 65:

Enhanced Warning Regulations

The Office of Environmental Health Hazard Assessment

(OEHHA) has released for public comment a proposal

to enhance warning requirements. OEHHA is claiming

that these changes are necessary to make more

information available to the public and give businesses

greater flexibility and certainty in terms of the warnings

it provides. However, OEHHA’s proposed changes are

substantial and there is significant concern by CLFP and

the larger business community that these changes will

result in increased litigation and greater burdens on

businesses for compliance with Proposition 65.

In particular, the key elements of the proposal include:

• The creation of an OEHHA website that will be listed

in all warnings.

• A list of chemicals that must be specifically listed in a

Proposition 65 warning if there is an exposure to that

chemical. The list includes mercury, lead, arsenic,

cadmium, phthalates and chlorinated Tris among

others.

• Changes to the methods of warning and the content

of warnings including changes to what has been

considered a “safe harbor warning.”

OEHHA held a public hearing on March 25, 2015. CLFP

submitted two separate joint comments to OEHHA with

the Agricultural Council of California and the California

Chamber of Commerce.

OEHHA plans final adoption of these regulations

this summer.

Lead in Fruit Case

In September 2011, the California-based Environmental

Law Foundation (“ELF”) filed a lawsuit against Gerber,

Dole, Welch’s and 15 other large and small food

manufacturers, as well as numerous distributors and

retailers, for failure to warn for lead as allegedly required

under Proposition 65.

On July 31, 2013, Judge Brick with the Alameda Superior

Court issued a lengthy written decision finding for the

food and beverage manufacturers on the basis of their

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