California League of Food Processors 15
“safe harbor” defense –more specifically that the amount
of exposure to lead from each of the products was
under Proposition 65’s 0.5 microgram per day warning
threshold. One of the key arguments by the defense that
Judge Brick agreed with was that exposure to lead should
be averaged over time based on actual data on how the
food or beverage is consumed and based on an average
of lead levels detected in lots.
ELF and the defense appealed Judge Brick’s decision. On
March 17, 2015, the California Court of Appeal issued a
decision that affirmed the trial court’s decision that the
defendants had met their burden on the safe harbor
defense, and that the defendant’s use of averaging was
permitted under Proposition 65. This is a great result.
However, the court did not address in its decision the
cross-appeal and the industry’s arguments related to a
naturally occurring exemption and federal preemption.
ELF may appeal the case to the California Supreme Court.
In early January 2015, the Mateel Environmental Justice
Foundation, which has a long history as a Proposition
65 plaintiff, filed a writ petition seeking to challenge
and rescind the “safe harbor” level for lead under
Proposition 65. This action has potential consequences
for the agricultural and food processing industries as well
as a wide range of other industries that manufacture or
distribute consumer products sold in California that may
contain trace levels of lead. Mateel asks the court to
order OEHHA to rescind the current 0.5 micorgram/day
safe harbor for lead under Proposition 65. Stated simply,
Mateel wants OEHHA to require businesses to provide
Prop 65 warnings if their product and/or facility contains
any amount of lead.
The economic, legal and policy consequences that will
result if OEHHA does not mount a vigorous defense will
be extraordinary. This could undo a positive verdict
for food processors in the lead in fruit case currently
pending in the Court of Appeal. Further, longstanding
determinations and prior court-approved settlements
based on the existing lead warning threshold could be
called into question. Many plaintiff enforcers would
likely use any detectable lead, no matter how small, to
support a notice letter and a lawsuit against a company.
The amount of warnings from lead exposures would
increase exponentially, flooding consumers with even
the California Farm Bureau and other organizations as an
intervener in this case. This will help ensure that OEHHA
does not make a settlement agreement with the plaintiffs
that will have an adverse impact on industry.
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