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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.

Mateel Case

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

more warnings.

CLFPhas joinedwiththeCaliforniaChamberofCommerce,

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.

- Industrial Plants and Facilities

- Floor and Epoxy Coatings

- Specialty Finishes

- Food Grade Safety Procedures

- Lift and Confined Space Certified

- Sand Blasting, Rust Removal, and

Surface Preparation