Recent Proposition 65 Decision Gives Guidance to Food, Beverage and Consumer Goods Companies

    View Author August 2013

    While the California Senate continues to deliberate reforming the Safe Drinking Water and Toxic Enforcement Act, commonly known as Proposition 65 (Prop. 65), on July 15, 2013, Alameda Superior Court Judge Brick issued an important and comprehensive decision in Environmental Law Foundation v. Beech-Nut Corporation et al. Judgment for the defendants was entered on August 7, 2013. Judge Brick held that food and beverage companies can average exposure over time when determining whether the level of toxic substances in products goes above the threshold level, requiring a warning. Judge Brick’s decision will give food, beverage and other consumer goods companies that do business in California helpful guidance in complying with Prop. 65’s labeling requirements.

    Under Prop. 65, the Governor of California has established a list of chemicals that are known to cause cancer, birth defects or other reproductive harm (the so-called Proposition 65 List). Among other requirements, entities with more than 10 employees that do business in California (including entities located outside of California) are required to provide a clear and reasonable warning before knowingly exposing persons to any chemicals on the Proposition 65 List. If businesses do not comply, the California Attorney General, City Attorney or private enforcers, such as the plaintiff in this case, Environmental Law Foundation (ELF), may bring an enforcement action “in the public interest.” Prop. 65 lawsuits have involved a range of consumer products, foods and beverages and have cost companies hundreds of millions of dollars in defense costs.

    Since most Prop. 65 cases settle before trial, the Beech-Nut Corporation litigation is a rare opportunity to get insight into the three major defenses to such lawsuits and the methodology by which the court determined that the defendants in this case are not obligated to provide Prop. 65 warnings.