Cal Biz Lit

Proposition 65 DART Committee To Consider Bisphenol A

    CalBizLit has mentioned here and here that there is currently a significant up-tick in the increase of chemicals listed either as carcinogens or reproductive toxicants under Proposition 65.  However, there's a big one coming up at the meeting of the Developmental and Reproductive Toxicant ("DART") Identification Committee this coming Wednesday, July 15 in Oakland.  The sole chemical up for consideration will be Bisphenol A, an industrial chemical used to make plastic resins.  Bishphenol A is very common in all kinds of plastic containers, including baby bottles. 

    Industry and environmentalists have been at each others' throats over Bisphenol A for quite some time.  You can get a small flavor of the battle here at Bisphenol-a.org (pretty clearly an industry-supported site, although I couldn't find anybody taking credit for it), the National Institutes for Health's National Institute of Environmental Health Sciences site on the subject here, and, on the slightly more up-in-arms side, the green perspective at Bisphenolafree.org and the calmly, thoughtfully named "OurStolenFuture.org" here. 

   

OEHHA's write-up on Bisphenol A, downloadable here, is a thumping 300 pages or so long.  CalBizLit read it (ok, scanned it), so you don't have to.  Bottom line:  this really shapes up as a classic precautionary principle vs. burden of proof kind of battle.  OEHHA seems to ackknowledge that the epidemiology is pretty inconclusive, and that

[s]tudies reporting adverse reproductive effects of BPA and studies reporting no such effects are both numerous. Overall, studies that used sensitive methodologies to assess appropriate endpoints consistently reported developmental, female-reproductive and male-reproductive effects. 

    I think there are a number of toxicologists who would take issue with that final statement.  Of course, just about all of the evidence is animal or in vitro evidence, and OEHHA also acknowledges that much of the science hasn't been replicated.  Furthermore, the endpoints seem to be a smattering of possible male and female reproductive effects, many of which have been seen in rodents.

    My guess is DART votes to list Bisphenol A.  The impact will be huge, and probably nationwide:  There's just not much of a market for plastic baby bottles that come with a warning about reproductive or developmental harm, so many Bisphenol A containers will likely disappear.  That is, after a few years of bounty hunter enforcement litigation.

Still More Chemicals Up For Proposition 65 Listing

    Now we all got a good chuckle over the Proposition 65 Cancer Identification Committee's recent action in listing marijuana smoke as a carcinogen (see:  Proposition 65 Now Protects Stoners.  As they say, however, "but seriously folks . . . ."

    The CIC voted on May 29 to prioritize 38 more chemicals for possible listing as carcinogens.  Nine were designated as high priority, and these include fluoride (yep, the stuff the dentists use, Crest puts in its toothpaste and many water districts add to the water), Perfluorooctanoic acid (PFOA) (a once-common surfactant used in Teflon, Goretex, Scotch Guard) and -- "towards the bottom of the 'High' category depending on exposure considerations" Diisononyl phthalate (DINP).

    Now, if past is prologue, it may be a long, long, time before the CIC gets to a chemical that is "towards the bottom of the 'High' category."  But if it ever does, look out.  The Proposition 65 plaintiff bar has been going after the plasticizer DEHP with a vengeance for the past eighteen months.  While DEHP is listed both as a Proposition 65 carcinogen and a reproductive toxin, there is likely no duty to provide a cancer warning for DEHP because of the trial court's decision in Baxter v. Denton (2004) 120 Cal.App.4th 333.  But until somebody proves that human exposures are below the MADL, there will be a duty to provide Proposition 65 warnings about that chemical's reproductive/developmental toxicity. 

    What does this have to do with DINP?  Well, for non-children's items, the substitute plasticizer of choice has been DINP (DINP is already banned on an interim basis pending further study by the recently enacted Consumer Product Safety Improvement Act).  If DINP makes it to the cancer list, the impact on manufacturers of inexpensive vinyl goods (think about just about any cheap soft plastic product you can imagine) is going to be huge.

    For more on Proposition 65 wackiness, you can always look at CalBizLit's collection of Proposition 65 posts here, or download my firm's White Paper on the subject here.

Proposition 65 Now Protects Stoners

    Dude.  Two and one half years of CalBizLit, and finally, our first marijuana story.   I go away for a three day weekend and what happens?  California's Cancer Identification Committee lists marijuana smoke as a carcinogen.  Twelve months from now, look to see the Proposition 65 safe harbor warning on those baggies.

    The San Jose Mercury News quotes NORML's Allen St. Pierre:  "This will be a vexing series of conversations and negotiations."  Ya think?  Per the Merc, "St. Pierre believes it may accelerate what he calls the "pharmaceuticalization" of the drug: marijuana pills, arm patches, under-tongue sprays and suppositories," as well as vaporizors. 

    I love California, I really do.  But this is the second post in a week that feels like "Through the Looking Glass."

Well That Sure Didn't Take Long: OEHHA Adding 30 Chemicals To Proposition 65 List

    CalBizLit blogged here and here about the suit by Sierra Club and others to force expansion of the Proposition 65 list of carcinogens and reproductive / developmental toxicants.  As discussed, the Alameda County Superior Court ruled in April and May that Proposition 65 required the State to list all of the chemicals referred to by Labor Code sections 6382(b)(1) and 6382(d), including all reproductive / developmental toxicants for which threshhold limit values had been set by the American Conference of Governmental Industrial Hygienists.

    Now the lead agency for Proposition 65, California's Office of Environmental Health Hazard Assessment ("OEHHA") had issued notice that it intends to add 19 chemicals as reproductive or develomental toxicants (although three to be added are already there as reproductive toxicants and now being added as developmental, or vice verse) and 11 chemicals as carcinogens. 

    There's a comment period running until July 13.  But good luck with that.  As OEHHA notes in bold font, it won't look at scientific evidence:

Because these are ministerial listings, comments should be limited to the question whether IARC or NTP [or ACGIH in the case of the reproductive/developmental list] have identified the specific chemical or substance as a known or potential human or animal carcinogen [or developmental/reproductive risk].  Under this listing mechanism, OEHHA cannot consider scientific arguments concerning the weight or quality of the evidence and will not respond to such comments if they are submitted.

    This is even more "through the looking glass" than is usual with Proposition 65.

Sierra Club v. Schwarzenegger / California Chamber of Commerce v. Schwarzenegger: Trial Court Orders ACGIH Reproductive Toxins Added to Proposition 65 List

   

CalBizLit blogged here on May 15 about the consolidated cases involving the Sierra Club and quite a number of other public interest organizations and unions, the California Chamber of Commerce and the State of California.  The public interest organizations and unions are seeking to expand the Proposition 65 list and to make the process for adding chemicals more dynamic.  The Chamber is trying to achieve the opposite.

    Last month, Judge Freedman in Alameda County Superior Court ruled that the State was required to list all the chemicals identified by reference in Labor Code sections 6382(b)(1) and 6382(d).  As of yesterday, it's Sierra Club et al. 2, Chamber 0.  Judge Freedman ordered that the state must also list all reproductive toxicants on the American Conference of Governmental Industrial Hygienists' ("ACGIH") list of Threshold Limit Values for Chemical Substances and Physical Agents in the Work Environment ("TLVs").

    In CBL's experience,  there are a lot chemicals that are listed but are encountered so rarely that the impact of their listing is largely theoretical.  What I hope to do soon is talk to some industrial hygienists and find out the extent to which this really makes a difference.  And when I do, I'll report back.

    Update:  The order is here.

You Like The Proposition 65 List Now? Wait 'Til You See It With Still More Chemicals

    Early this month, CalBizLit received a number of press releases concerning a Proposition 65 case in Alameda County Superior Court, generally stating as follows (from the NRDC's press release):

The Alameda Superior Court has ruled that California’s landmark “right-to-know” and safe drinking water protection law, Proposition 65, must be extended to toxic chemicals known to cause cancer and reproductive harm identified under worker protection standards. The ruling finds in favor of labor and environmental groups, including the Natural Resources Defense Council, United Steelworkers and Sierra Club that fought the case against the California Chamber of Commerce.

    I held off on posting until I had time to dig a little further than the press releases.  And what I found is pretty interesting.  This is kind of Proposition 65 inside baseball, but it's potentially important.

More after the jump.

AG Posts 2008 Proposition 65 Settlements

    Each year since 2000, the California Attorney General has posted a summary of Proposition 65 settlements for the previous year, and the report for 2008 is now up.  The trend is up, not for the number of settlements but for their average dollar amounts.

    Last year, private party enforcers (as you call them if you are on the plaintiff side), or bounty hunters  (as you call them if you are on the side of righteousness  defense side) settled a total of 187 cases for penalties, payments in lieu of penalties, attorneys' fees and costs totaling $17,804,104.44.  That's an average settlement of $95,209 per case.  That number is substantially skewed, however, by the result of a single case:  Environmental Law Foundation and Communities for a Better Environment's $6.6 million attorneys' fee settlement from Laidlaw Transit, which also agreed to invest $4.7 million in bus improvements to improve emissions. 

    If you take the Laidlaw settlement out, the average bounty hunter settlement is a trifling $60,237, higher than 2006 and 2007's averages of $43,764 and $59,031, respectively.  On the other hand, if you look at all settlements, including those by the Attorney General and other public enforcers, here are the total amounts recovered and averages for each of the last four years:

2005:  148 settlements, averaging $69,513
2006:  199 settlements, averaging $68,407
2007:  156 settlements, averaging $75,940  and
2008:  199 settlements, averaging $123,303.

    Oh yes, and the amounts going to bounty hunter attorneys' fees and costs from 2000 through 2008?  $59,812.298.57.  That's 66.86% of the cash amount in all the settlements.

    And the amount going to the State of California?  It's a little difficult to determine, but my best stab at calculating it suggests that the maximum amount that could have gone to the State of California from settlements from 2000 through 2008 is $7,602,531.  That would be a thumping 6.6% of all settlements.

More Charlie the Tuna: Blog Commentary On Experts Hired By Judges

    I posted here about three weeks ago on the Court of Appeals decision in  People ex rel. Edmund G. Brown Jr. v. Tri-Union Seafoods, LLC (March 11, 2009) ___Cal.App.4th___ (A116792), particularly discussing the court's wistful longing for replacement of today's hired gun litigation experts system with neutral experts at trial, selected by the judge. 

    Drug and Device Law picked up the same subject here, and Beck and Hermann have some more thoughts on the subject.

    But wish for it all you want.  Ain't gonna' happen.

Charlie the Tuna 1, State of California 0

    In January, CalBizLit posted about then scheduled argument in People v. Tri-Union Seafoods, LLC, the Proposition 65 mercury in canned tuna case.  I mentioned then that my tea-leaf reading indicated, from the Court of Appeal's pre-argument letter to the parties, that

things weren't going to go well for the Attorney General.  The decision is out today, and for once, CalBizLit's crystal ball was functioning properly: the tuna industry won.  But there are some other features to the decision that are pretty interesting for anyone litigating Proposition 65 matters, and, for that matter, anybody litigating science-based cases of any kind.

    More after the jump.

Court of Appeal to Hear Proposition 65 Tuna Case

    In May, 2006, San Francisco Superior Court Judge Robert Dondero ruled against the Attorney General's office in its Proposition 65 enforcement action against the three primary sellers of canned tuna.  The AG had sought Proposition 65 warnings because of the presence of methylmercury in canned tuna.  Judge Dondero ruled that FDA warning requirements preempted state warning requirements for canned tuna, that most of the mercury was naturally occurring (so that no warning is required) and, according to news reports, that the amount of mercury was below the safe harbor levels.

    The AG has appealed, and the appeal will be argued tomorrow, January 27, before the Court of Appeal District 1, Div. 4, here in San Francisco.  In a letter to counsel dated January 5, the Court made the following request:

The court requests that counsel be prepared to address at oral argument the issue of whether substantial evidence supports the trial court's finding that methylmercury in tuna is "naturally occurring.

   

    My tea-leaf reading would suggest that this request is better for the tuna industry than for the AG.