San Fernando Valley Los Angeles Attorneys
Navigation Two
Phone Number

Entries in Prop 65 (5)

Friday
Jun152018

Killer Coffee? California May Exempt Coffee Industry from Prop 65 Warning Requirements

Environmental Litigation AttorneyEnvironmental Litigation

Stephen T. Holzer

818.907.3299

 

We told you about the lawsuit brought against nearly 100 food industry companies regarding the lack of Prop 65 warnings in restaurants and stores selling coffee. The problem is the potential presence of acrylamide when coffee is roasted or brewed – one of the many chemicals known to the State of California to cause cancer or reproductive damage.    

Under California law, businesses with 10 or more employees must post Prop 65 warning signs and labels on the premises or on food packaging, warning consumers of possible exposure to these health risks.

In May of 2018, a Los Angeles Superior Court finalized a tentative ruling stating the Defendants (which include major chains like Starbucks, Dunkin’ Donuts and others) failed to show that acrylamide in coffee posed no significant risk.

But there’s something new brewing: The Office of Environmental Health Hazard Assessment (OEHHA) may try to sweeten an otherwise bitter situation. The Office is proposing adding a new section to Article 7 of Title 27 of the California Code of Regulations section 25704. The new section would state that exposures to acrylamide from coffee pose no risk of cancer.

The catch is the proposal has to undergo a public hearing in August 16, 2018 in Sacramento, and a written comment period that ends at the end of August. Written comments can be sent to:

Ms. Monet Vela

Office of Environmental Health Hazard Assessment
P. O. Box 4010
Sacramento, California 95812-4010

Telephone: 916-323-2517
Fax:  916-323-2610

Email: monet.vela@oehha.ca.gov

Coffee retailers, restaurant owners, distributors, importers and resellers who don’t want to label packaging or post signage at their place of business regarding acrylamide in coffee should act quickly.  

But these same businesses and nearly every other one in California are also reminded that the Prop 65 text on signs and labels needs as of August 30, 2018 to change on other products that contain potentially toxic substances. Please read OEHHA’s New Prop 65 Warnings for the specific requirements.

 

Stephen T. Holzer is the Chair of our Environmental Practice Group and a Shareholder in our Business Litigtion Practice Group.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
May092018

Court’s Prop 65 Ruling a Great “Brewhaha” for Coffee Retailers

Environmental Litigation AttorneyProp 65 Defense Attorney

 

 

 

Stephen T. Holzer

818.907.3299

 

 

In 2010, a nonprofit group called The Council for Education and Research on Toxics (CERT) brought a lawsuit against 91 commercial coffee roasters, retailers and distributors. 

CERT claimed the defendants failed to provide warnings regarding high levels of acrylamide, thus violating the Safe Drinking Water and Toxic Enforcement Act of 1986, more commonly known as California’s Proposition 65. The law requires companies with 10 or more employees warn consumers and others of any exposure to more than 900 confirmed or suspected carcinogens, including acrylamide, at the point of sale.

In late March, Los Angeles Superior Court Judge Elihu Berle tentatively decided in favor of CERT. The Court ruled that Starbucks and other companies failed to show there was no significant risk from acrylamide produced in the coffee roasting process and that cancer warning labels must be placed on their products in California.

That ruling has now been finalized. Barring a successful appeal, it appears that the law will force retailers either to post the Prop 65 warnings, or find ways to remove acrylamide from the coffee.

Prop 65: Signs of the Times

Businesses in California should take note: New compliance rules for Prop 65 take effect as of August 30, 2018. That leaves just a few months to ensure your signage or product packaging is complete and accurate. Generic warnings will no longer suffice.

Some of the new rules include the following requirements (for more details, see 27 California Code of Regulations [“CCR” §25603, Consumer Product Exposure Warnings – Content]:

  1. WARNING” must appear in the sign in bold and with all capital letters.

  2. The sign must also generally include a yellow equilateral triangle outlined in black, with a black exclamation point in the center. This symbol must be at least as high as the word “WARNING.”

  3. Premises signage must contain the specific name of the toxic substance found in the product sold.

  4. Product labels do not need the chemical name, but must include requirements 1 and 2, above.

  5. If warning labels and signs are given in another language, businesses must also provide them in English.

Stephen T. Holzer is the Chair of our Environmental Practice Group.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Monday
Jan292018

Su-PERFLUO-us? More Chemicals Added to Prop 65 List

Environmental Litigation AttorneyEnvironmental Litigation Defense Attorney

 

Stephen T. Holzer

818.907.3299

 

Business owners manufacturing, buying, selling, or importing products in California already know about the state’s Prop 65 law. But do they also know every single chemical or substance that is on that list?

PFAs in food containersThey couldn’t possibly unless gifted with total recall, and even then they would have to keep up with numerous revisions made by the state’s Office of Environmental Health Hazard Assessment (OEHHA). As of December, nearly 1,000 contaminants have been added over the past 30 or so years – substances that are known to the State of California “to cause cancer or reproductive toxicity.”

Some recent additions to the list are perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), members of the perfluoroalkyl substances (PFASs) family of chemicals.

As of now, the State has not determined a Maximum Allowable Dose Level. The federal Environmental Protection Agency however, established a drinking water health advisory level at 70 parts per trillion. Nevertheless, California businesses with 10 or more employees must provide warning labels on products that contain these PFOs, and in buildings where PFOA or PFOS may exist.

The chemicals are widely used to protect products from moisture and potential stains and to reduce friction in mechanical industries. So which businesses will most likely be affected?

  • Food Manufacturers & Packagers (packaged foods with coated paper);

  • Restaurants & Other Food Vendors (seafood or fish from water contaminated by PFOS, take-out containers, pizza boxes, popcorn bags, etc.);

  • Manufacturers (cosmetics, camping equipment, water/stain resistant clothing, water/stain resistant treatment products for clothing or furniture, carpeting, etc.);

  • Commercial Building owners and managers;

  • Retailers and Distributors dealing with any of the above.

PFOsAccording to the EPA, the contaminants aren’t made in the U.S. anymore – but PFOAs and PFOSs still show up in many imported products. And they don’t biodegrade well, thus the recent concerns regarding their presence in groundwater, fish, etc.

Anyone dealing in these and other products that contain PFOAs or PFOSs in California should post a Prop 65 warning label on products that contain these contaminants, and in buildings where employees or consumers may be exposed to the chemicals. 

Stephen T. Holzer is a Business Litigation Attorney and Chair of our Environmental Practice Group. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Friday
Jun162017

Old Grounds: A Lack of Prop 65 Warnings Brew Trouble for Coffee Franchisors

 

by Stephen T. Holzer and Barry Kurtz

 

California Prop 65 warnings – many residents barely notice these anymore, as we’ve lived with Safe Drinking Water and Toxic Enforcement Act notices for over 30 years now. They appear at gas pumps; in apartment and office buildings; on packaging for food, toys and other products; and in retail establishments all over the state.

The ubiquitous but largely ignored warnings are clear, generally stating that a consumer may be exposed to certain chemicals that may cause cancer or reproductive harm.

But if the average citizen of California no longer notices the signs, who does? Bounty hunters. More specifically, an opportunistic group of consumers and lawyers who notice the lack of Prop 65 signs and labels. They then file lawsuits on behalf of the public good. Most businesses settle the claims rather than engage in expensive litigation.

This leads to a whole new trend in tort litigation aimed at restaurants, though Starbucks and Dunkin’ Donuts were named (along with approximately 80 other coffee co-defendants) in a suit brought by the Council for Education and Research on Toxics (CERT) back in 2010. CERT's complaint is that these businesses failed to warn customers of potentially harmful, carcinogenic chemicals in coffee, specifically acrylamide.

In the latest news on this particular CERT suit, Dunkin’ lost its argument for summary judgment. The franchisor claimed it needn’t put warning labels on its coffee because technically, the franchisor doesn’t sell coffee in California. Dunkin’ Brands Inc. oversees a corporation – it doesn’t buy, sell, roast, distribute or even possess coffee.

A Los Angeles Superior Court Judge found that argument weak, and so to court will Dunkin’ go, along with its codefendants. 

More Acrylamide and Other Chemically-Based Acrimony

The chemical acrylamide isn't just found in coffee. It forms on starchy foods as they cook, so toast, French fries and a host of other popular menu items carry trace amounts. Really, just about any one operating a restaurant in California can become a target for this type of tort.

But environmental plaintiffs worry about other chemicals and ingredients too.

Prop 65 and Restaurant Businesses

According to the Mercury News, plaintiffs filed lawsuits last year because of Bisphenol A (BPA) found in receipt paper and bottled water.

Sugar is also on the chemical hit list, though not considered a Prop 65 chemical. California lawmakers introduced Senate Bill 300, the Sugar-Sweetened Beverage Health Warning Act, which could require anyone selling closed container beverages to add warnings to their containers, and any business with vending or beverage dispensing machines to add signage to those machines.

The warning as written now, would read:  STATE OF CALIFORNIA SAFETY WARNING: Drinking beverages with added sugar(s) contributes to obesity, type 2 diabetes, and tooth decay.

Some franchisors have already stated an intention to remove food dyes from the ingredients of their menu items, Dunkin' Donuts and Baskin Robins among them. But California has a bill targeting products with these chemicals too.

Senate Bill 504 would amend the state's Health and Safety Code to direct the Office of Environmental Health Hazard Assessment (OEHHA) to review literature regarding the potential risks to children who may be consuming these chemicals.

A report from the OEHHA would be due in 2019. Chances are good the chemicals in food dyes will make their way to the hundreds of chemicals already flagged on California's Prop 65 list of potentially toxic agents.

Prop 65 Compliance

So what should restaurant owners know about Prop 65, and more importantly, what should they do?

1. Size Matters: Understand that the law affects businesses employing 10 or more people. Small café and food truck owners are probably safe if they employ a skeleton staff. In fact, that was another argument Dunkin' Brands Inc. attempted when it tried to get out of the coffee labeling suit.

2. The List is Long: There are about 900 chemicals cited as dangerous on the OEHHA list as of January (there are 1,000 rows on the Excel sheet – some of the data contains delisted chemicals, some are header information rows, etc.). Chances are good every business in California with 10 or more employees should be posting a warning of some sort.

3. Prop 65 Has Evolved: The rules regarding this law changed recently. Warning labels and signs gave general warnings in the past, now businesses must name the specific chemical present on the premises or in the product. That could get rather daunting, e.g. "This establishment sells products for consumption that may contain acrylamide, BPA, benzidene (found in food dyes), ethanol (found in alcoholic beverages), etc. The new rules will be enforced as of August 30, 2018.

4. Violation Penalties: Up to $2,500 per day, per violation.

5. Some Good News: Businesses could argue that the levels of the chemicals present in food or other products are so low, there is little risk of harm. This type of defense requires expert, scientific testimony however, and may be financially out of reach for many businesses.

Franchisors and franchisees should beware and be diligent. 

History tells us that when a contingency fee attorney finds one unit in a franchise system in potential violation of these types of consumer-protection laws, litigation on the claims spreads through the franchise system and company-owned units like wildfire. Since the franchisor generally establishes operating standards, specifications and procedures with which the franchisees must follow, both are at risk if they fail to comply with these measures once they become law.

 

Steve Holzer is the Chair of our Environmental Practice Group. Barry Kurtz is the Chair of our Franchise and Distribution Practice Group.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Tuesday
Jan032017

Prop 65 Update: The Rules They Are a Changin'

Litigation AttorneyEnvironmental Litigation

 

Stephen T. Holzer

818.907.3299

 

Proposition 65, known as the Safe Drinking Water and Toxic Enforcement Act of 1986, among other things requires businesses employing ten or more people to warn consumers if the business’ products contain a chemical scientifically shown to cause cancer or reproductive toxicity.

Prop 65 LawyerThe State maintains a list of such chemicals. Such warnings are delivered by placing “clear and reasonable” warning statements on the products, on product packaging, or on signs at retail establishments selling the products. Historically, the warnings were usually sufficient even if they were somewhat generic – e.g., “This product contains a chemical [our emphasis, for illustrative purposes only] known to the State of California to cause cancer or reproductive toxicity.”

New Prop 65 Rules

After 30 years of living under regulations implementing Proposition 65, the Office of Emergency Health Hazard Assessment (“OEHHA”) has promulgated a whole new set of regulations re clear and reasonable warnings designed in part to “make warnings more meaningful to the public.” 

The new regulations require, among other things, the warning specifically to identify the chemical(s) in question – e.g., “This product can expose you to lead [our emphasis] which is known to the State of California to cause cancer or reproductive toxicity.” The new regulations also provide for specialized warnings for certain industries. The specific warning language listed in the new regulations need not be used if affected businesses can show other language provides a “clear and reasonable” warning; but the safest thing for a business to do is to adopt the language in the regulations.

Businesses have until August 30, 2018 until the new regulations become effective but can operate under the new regulations immediately if desired.

Enforcement Actions

Proposition 65 can be enforced by the government, but if the state chooses not to take action after being notified that adequate warnings were not given, individuals may do so by acting as “private attorneys generals.” Businesses in violation of the warning requirements may face a civil penalty of up to $2,500 a day for the period of violation. Typically though, settlements are much smaller than this draconian amount.

A Prop 65 claim is a particularly difficult claim for a business to defend. The most common defense is to show that people exposed during a course of a lifetime to the chemical(s) at issue would not become ill because the levels of the chemical(s) are too low to do any harm. It is expensive to mount such a scientific defense, requiring the testimony of experts. Small to medium-sized businesses generally choose to settle because the financial burden of litigation is too great.

Although case law suggested that a litigation settlement would protect a party from further Prop 65 claims re the same products and associated chemicals placed at issue by the claim, the law was arguably not completely settled in this regard. The new regulations specify that court-approved warnings will shield the businesses involved in a particular claim from future claims over the same issues.

OEHHA provides extensive information about Proposition 65. Additionally, you can contact us with any questions.

Stephen T. Holzer is the Chair of our Environmental Practice Group and a business litigation attorney. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

LEWITT HACKMAN | 16633 Ventura Boulevard, Eleventh Floor, Encino, California 91436-1865 | 818.990.2120