Trial Court Creates Uncertainty Around Prop. 65 Safe Harbor Levels

Christopher Jensen
July 21, 2015

A recent California trial court ruling has the potential to increase the risk of Proposition 65 liability for businesses that rely on regulatory “safe harbor” levels in their compliance programs.

California voters adopted Proposition 65 through the initiative process in 1986. The law requires companies with 10 or more employees doing business in California to either ensure their products do not exposure workers or consumers to unsafe levels of substances that cause cancer or reproductive harm, or provide a warning that such exposure may occur.

The California Office of Environmental Health Hazard Assessment (OEHHA) identifies “listed” chemicals subject to Proposition 65 warning requirements. In addition, OEHHA is authorized to establish “safe harbor” levels—concentrations below which a listed chemical does not cause cancer or reproductive harm. These safe harbor levels provide an affirmative defense in Proposition 65 enforcement actions.

One of the most important provisions of Proposition 65 is its “private Attorney General” provision, which allows members of the public to enforce the initiative and entitles prevailing private plaintiffs to 25% of the civil penalty assessed and attorneys’ fees. The attorneys’ fees provision in particular has attracted an active plaintiffs’ bar that specializes in Proposition 65 litigation.

Mateel Environmental Justice Foundation, one of the more active plaintiffs, is at the center of ongoing litigation in Alameda County Superior Court challenging the safe harbor level for lead that OEHHA established in 1989. Mateel filed a petition for writ of mandate and complaint alleging that the safe harbor level lacked a sound scientific basis and seeking to compel OEHHA to rewrite the safe harbor regulation.

In moving for judgment on the pleadings, OEHHA argued that Mateel’s claims were untimely, given that they were filed 13 years after the three-year statute of limitations for challenging an administrative action expired. The court disagreed, however, holding that Mateel’s challenge to the safe harbor regulation created a “present controversy susceptible to declaratory relief.” The court cited Mateel’s interest as a private enforcer of Proposition 65 as a basis for classifying Mateel as an “interested person” for purposes of obtaining declaratory relief.

The trial court’s ruling has no precedential impact, but if sustained, it could increase uncertainty for manufacturers and retailers that rely on established safe harbor levels to protect themselves against Proposition 65 claims. We will continue to monitor developments in the trial court and in any appeal of the court’s ruling that could impact companies doing business in California.