The California Chamber of Commerce and a large coalition of businesses and trade associations are urging the state Office of Environmental Health Hazard Assessment (OEHHA) to “vigorously defend itself” against a recently filed lawsuit that bypassed agency protocol and went straight to the courts.
The lawsuit filed against OEHHA by Mateel Environmental Justice Foundation asks the court to order OEHHA to rescind the current safe harbor level for lead.
Under Proposition 65, a business need not provide a warning if exposure to lead occurs at or below the safe harbor level. Mateel argues that the warning threshold for lead should be declared illegal and inoperative despite having been published as a final rule by the agency nearly 25 years ago.
The CalChamber and coalition warn in a February 4 letter that the economic and legal impact of declaring the current lead safe harbor illegal and inoperative cannot be understated and may have broader long-term repercussions that could go far beyond the lead safe harbor issue.
The current safe harbor for lead—established by OEHHA in 1992—is the most stringent in the world at 0.5 micrograms per day, particularly due to Proposition 65’s conservative 1,000-fold uncertainty factor requirement for reproductive toxicants. The safe harbor is based primarily on a federal standard and was considered carefully when adopted by OEHHA (the lead agency for implementing Proposition 65).
Mateel’s lawsuit—more than two decades later—asks a court to overturn the lead agency’s considered decision, thus placing California even more out of step with standards set by the federal government and other jurisdictions around the world. Mateel’s argument relies on controversial and inconclusive science.
In the letter to OEHHA, CalChamber and the coalition explain that if the lead safe harbor is declared illegal, longstanding compliance determinations and prior court-approved settlements based on the existing lead warning threshold could be called into question. Some private enforcers would likely use any detectable amount of lead, no matter how small, to support a notice letter and a lawsuit against a company.
Given Proposition 65’s unique shifting of the burden of proof to the defendant, the relief Mateel seeks could open the doors to more unnecessary litigation, more burden on the overtaxed court system, more shifting of wealth to the coffers of the “citizen enforcers” and their counsel, and more incentives for businesses to provide unwarranted warnings, creating more consumer confusion as Proposition 65 warnings proliferate and indiscriminately cover products with trace concentrations of lead in the same manner as products containing concentrations that may actually present a meaningful health hazard.
From a policy standpoint, these results—which are virtually certain to occur if Mateel gets its way or if OEHHA accommodates Mateel in the litigation by not defending itself vigorously—go directly contrary to the Governor’s calls to reduce Proposition 65 litigation and OEHHA’s calls to reduce the amount of warnings in California’s stream of commerce.
Correct Procedural Steps
CalChamber and the coalition agree that Mateel, like any other interested party, has the right to ask OEHHA to re-examine the lead safe harbor.
Instead of playing by the rules by petitioning OEHHA to re-examine the safe harbor in a properly documented petition that could initiate a regulatory process if OEHHA agrees one is warranted, Mateel seeks to bypass this potential review by the agency and has gone straight to the judicial system.
Indeed, Mateel is no stranger to using the judicial system; it has filed nearly 800 notice letters and hundreds of Proposition 65 claims.
CalChamber and the coalition argue that to establish proper incentives and ground rules, OEHHA should demand that Mateel abandon its lawsuit without receiving consideration of any form in exchange.
Without a vigorous defense by OEHHA, Mateel’s request for relief, if granted or resolved through a settlement, would have profound adverse economic, legal and policy implications, including the Proposition 65 litigation overload and excessive warnings that the Governor and OEHHA have said repeatedly they would like to avoid.