Appellate court limits Prop 65 reliance on labor code listing

By CMTA Staff

Capitol Update, Dec. 13, 2012 Share this on FacebookTweet thisEmail this to a friend

On October 31, 2012, the California Court of Appeals, 3rd District,  affirmed a Superior Court decision prohibiting the inclusion of styrene and vinyl acetate on California’s Proposition 65 list based solely on their classification as “possible” rather than “known to cause.” The court ruled that chemicals may only be included on the list if there is sufficient showing that they are carcinogenic.

In recent years, the California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA) began adding numerous chemicals to the Prop 65 list based on the World Health Organization’s Interagency for Research on Cancer (IARC) Group 2B list for possible carcinogens. IARC 2B categorization (referred to in the Labor Code) is based on a determination that there is less than sufficient evidence of carcinogenicity in experimental animals and limited evidence in humans.

Among those chemicals added to Prop 65 on this basis were styrene and vinyl acetate. The Court said that OEHHA’s action was improper because it had waited fifteen years after the enactment of Prop 65 before it began using the Labor Code method for listing and because it had not adopted any formal regulations addressing this approach to listings.

The lawsuit was filed by the manufacturers of these two chemicals maintaining that OEHHA had not followed their 15 year precedent. The narrow issue presented to the appellate court was “whether chemicals categorized in Group 2B by an IARC monograph may be included on the Prop 65 list.” The court boiled the issue down to a question of statutory interpretation.

This decision likely applies to all IARC Group 2B Chemicals. While an appeal of this decision by OEHHA is still possible, the California Supreme Court accepts few appeals. Assuming this decision stands, the recent use of the Labor Code as a source will be curtailed since OEHHA will be precluded from adding any substance to the Prop 65 listing based solely on an IARC 2B classification. Undoubtedly, the manufacturers of chemicals that have been folded into Prop 65 because of the Labor Code listing will petition to be delisted.

Prop 65 imposes significant requirements on businesses, including discharge restrictions to public water sources and public notification requirements related to listed substances. This recent ruling is seen as an important win for businesses and one that may have sweeping impacts on chemicals manufactured and used in numerous industries.

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