California Appellate Court Agrees with Defendants on Prop. 65 Exposure Averaging

In one of the most significant appellate decisions interpreting California’s Prop. 65, the California Court of Appeal on March 17 ruled that, for purposes of establishing the Prop. 65 “safe harbor” defense, exposure to a listed chemical, such as lead, may be determined by averaging exposures over time and averaging concentrations of the chemical over multiple lots. The First Appellate District in Environmental Law Foundation v. Beech-Nut Nutrition Corp. is the first appellate court to address the issue of averaging exposure under Prop. 65--an issue that had been a point of contention ever since Prop. 65 was first enacted over 25 years ago. In affirming the judgment of the Alameda County Superior Court, the Court of Appeal’s conclusion in Beech-Nut is a direct rejection of the position that has long been advocated by both the Attorney General and the private plaintiffs’ bar, contending that a single, one-time exposure to lead that exceeds the safe harbor threshold is enough to require a warning.

In a thoroughly reasoned statement of its decision, the trial court in 2013 found that the language of Prop. 65 and its regulations, as well as the statement of reasons published by the Office of Environmental Health Hazard Assessment’s (OEHHA) when that agency listed lead as a Prop. 65 chemical, all support a conclusion that averaging exposures over time and over multiple lots was permissible. The trial court’s decision was also supported by expert testimony and analysis introduced by the defendants, which the court found “far more persuasive” than that of the plaintiff. The Court of Appeal affirmed, reviewing the trial court’s ruling under a substantial evidence standard of review.

It remains to be seen whether the California Supreme Court will ultimately weigh in on this case. In addition, OEHHA has suggested that it may attempt to limit the effect of the court’s decision, and invoke its regulatory authority over the issue of determining exposure in a Prop. 65 “safe harbor” defense. What appears certain is that this issue is far from settled.

A copy of the Court of Appeal’s opinion is available here.

- Joshua Bloom and Samir Abdelnour

For more information, contact Joshua Bloom at (415) 228-5406 or jab@bcltlaw.com, or Samir Abdelnour at (415) 228-5443 or sja@bcltlaw.com.