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Prop 65

Ag Council Raises Critical Issues in Prop 65 Comments

November 12, 2015
Ms. Monet Vela
Regulations Coordinator
Office of Environmental Health Hazard Assessment
1001 I Street
Sacramento, CA 95812

RE: Pre-regulatory Proposal Regarding Possible Addition of Section 25501.1 – Naturally Occurring Concentration of Chemicals and Naturally Occurring Concentrations of Arsenic in Rice and Lead in Some Foods

Dear Ms. Vela:

Agricultural Council of California, California Farm Bureau Federation and the California League of Food Processors appreciate the opportunity to comment on the Office of Environmental Health Hazard Assessment’s (OEHHA’s) Pre-Regulatory Proposal Regarding Possible Addition of Section 25501.1 – Naturally Occurring Concentration of Chemicals and Naturally Occurring Concentrations of Arsenic in Rice and Lead in Some Foods (Naturally Occurring Proposal) posted on August 28, 2015. We endorse the comments submitted by the California Chamber of Commerce but wanted to underscore and highlight a few additional matters pertaining to the potential regulation.

Except for a few very specific instances, the existing exemption for naturally occurring chemicals is not usable in its current form. We thank OEHHA for working to improve this regulation and look forward to assisting in providing a more meaningful process to utilize the intent behind the Naturally Occurring Proposal.

Addressing Variability of Naturally Occurring Chemicals within Food Products

OEHHA is currently attempting to update Prop. 65 through a number of avenues. While this is a stand-alone proposal, it is difficult to comment on one regulation without fully understanding how potential changes within other parts of the regulation are going to impact this current proposal.

As an example, OEHHA states in the Naturally Occurring Proposal on page 7 that after analyzing several studies that, “OEHHA’s analysis showed that the relationship is highly variable across studies. OEHHA found that predicting crop lead levels using estimated uptake factors derived from study data in control soils and plants led to higher values than what was measured in the TDS.”

OEHHA then goes on to utilize the U.S. Food and Drug Administration’s Total Diet Study (TDS) to establish background levels and a correction factor for lead levels in certain foods, therefore disregarding the underlying variability issue. There needs to be a range instead of using a single number to address this contradiction.

There has been some discussion that with the Naturally Occurring Proposal and allowing the use of a safe harbor or MADL, the variability could be covered. However, if OEHHA continues with its other plans to change the way in which exposure is measured over a certain amount of days, any MADL or safe harbors developed by OEHHA may not be useable in conjunction with the Naturally Occurring Proposal. The variability we could see in some food products would not be addressed. We are very concerned that there is no certainty that this formula will work.

There is no way to clearly assess how changing the mean to an arithmetic mean, the creation of ability to test lots and other proposed changes suggested by OEHHA will fully impact this Naturally Occurring Proposal. We support the proposal in the Chamber’s comments that recommends OEHHA create a range found in the various studies that OEHHA reviewed because it is likely to reflect the full span of variability. Additional consideration should also be given to the California Department of Food and Agriculture’s (CDFA’s) findings that lead levels in soil seem to be increasing over time. Therefore, studies need to be updated periodically to fully track with life cycle systems in the environment.

Utilizing the Naturally Occurring Proposal for “Unprocessed” or “Raw” Products

By utilizing the terms “unprocessed” or “raw,” OEHHA creates confusion as to how this proposal will work with products that are processed. Many of California’s crops are processed and the levels discussed throughout the proposal would still be found in those products because they are naturally occurring. By striking these terms, OEHHA would clarify that it is expected to find naturally occurring levels of chemicals in products, even in their final form. Otherwise, it could increase litigation for products that are processed because the background levels developed could potentially not be allowed for those products.

Presence of Other Chemicals in Food and Agricultural Products

On Page 3 of the proposal, OEHHA states, “Additional levels for other chemicals or types of foods may be adopted over time.”

We strongly support this language as there are other chemicals on the Prop. 65 list that are naturally occurring. It would be immensely helpful if OEHHA offered a process and/or expected timeline of future developments on additional chemicals so we can engage appropriately.

Even with OEHHA’s work on the Naturally Occurring Proposal, we do remain highly concerned that other changes to the regulation could negatively impact the good intent on improving this piece of Prop. 65. We do appreciate OEHHA’s work on the

Naturally Occurring Proposal and are hopeful we can find a workable solution for food and agricultural production.

Thank you for the opportunity to comment. We look forward to working with you on improving Prop. 65.

Sincerely,
Emily Rooney
President
Agricultural Council of California

Cynthia L. Cory
Director, Environmental Affairs
California Farm Bureau Federation

Trudi Hughes
Government Affairs Director
California League of Food Processors

 

November 17, 2015

Ms. Monet Vela
Regulations Coordinator
Office of Environmental Health Hazard Assessment
1001 I Street
Sacramento, CA 95812

RE: Pre-regulatory Proposal Prohibiting Averaging of Concentration Levels Across Lots

Dear Ms. Vela:

Agricultural Council of California, California Farm Bureau Federation and the California League of Food Processors appreciate the opportunity to comment on the Office of Environmental Health Hazard Assessment’s (OEHHA’s) Pre-Regulatory Proposal Prohibiting Averaging of Concentration Levels Across Lots posted on August 28, 2015. We endorse the comments submitted by the California Chamber of Commerce but wanted to underscore and highlight a few additional matters pertaining to the potential regulation.

In its proposal, OEHHA outlines that a chemical concentration is based on a “single lot of the final product in the form it will be purchased by the consumer.” OEHHA goes on to define a lot as “that quantity of a food product offered for consumer purchase having uniform characteristics and quality that is generated by one producer during a single production run, on a single processing line.”

Proposed Definitions Conflict with One Another

There are major conflicts with these two definitions as currently proposed by OEHHA. Many of California’s crops are processed after harvest. While there are fruits and vegetables that often stay in fresh form, many commodities are peeled, cooked, washed or processed in numerous ways to meet consumer demand. Also, in the agricultural world a “producer” is a farmer/grower/rancher, a food processor is not a producer.

For example, a tomato processor will receive hundreds of truckloads of fresh tomatoes 24 hours/day for six to eight weeks non-stop during harvest season. The tomatoes are immediately placed into a commingled flume system and may end up in many separate processing lines to develop various types of finished products, or sent into evaporators for paste or diced bulk products. There is not one grower, but numerous growers from a wide geographic range. There is, depending on the processor, not one processing line, but in some cases up to 22, or a number of evaporators to which the raw product is sent. There is no single production run, but continuous production runs.

During processing, fresh foods become intermingled in order to satisfy customer orders. There is no feasible way to test products prior to processing that would ensure product from the same grower stayed together and ultimately in a single product package at the end of the production line.

By stating that a chemical concentration is based on the final form that will be purchased by the consumer, and yet, defining a lot as being a food product that is generated by one producer on a single production line, OEHHA creates confusion as to how this proposal will work with products that are processed.

Lot codes are kept by the processor as a way of identifying product production time or other characteristics. Various quality control parameters, such as net weights, are continually analyzed and noted. But since analysis of Prop 65 samples commonly takes two weeks and generally costs $100/sample there has to be flexibility in how sampling is conducted. The proposed language does not recognize the immediacy and complexity of processing fresh food and as written cannot be implemented.

Testing Logistics Unworkable with Perishable Products

In the rare case that a food processor could find a way to segregate products into lots per OEHHA’s proposed definitions, the time it would take to get test results back is unfeasible during harvest of highly perishable products. California’s food products are harvested at the height of freshness and processed within hours of picking. If a food company selling processed products found a way to segregate products and wanted to participate in the testing, in many commodities there is no possible way to send samples away to a lab and wait for one to two weeks on results. Many fresh products must be processed within a reasonable timeframe or they spoil.

Current Proposal is Cost-Prohibitive

California is the number one agricultural state in the nation. We produce over half of the nation’s fruits and vegetables in arguably the most regulated state in the nation when it comes to agricultural and environmental issues. The quantity of food being processed in our state is in the millions of pounds per day, per processing plant, per company depending on the commodity.

To comply with the testing procedures proposed by OEHHA in this regulation, requiring that testing occur on a lot-by-lot basis, the cost could easily climb into the millions of dollars for each food company. At that point, a company would likely weigh the potential cost of warning every single product as opposed to conducting testing which may or may not be useful in the long-run.

The food and agriculture industry thanks OEHHA on its work on this regulation, particularly as it relates to the Naturally Occurring Proposal. As it currently stands, we cannot find a way to standardize “lots” to achieve the goals of OEHHA. We are hopeful that we can continue to work together in other areas to create more meaningful outcomes on Prop. 65.

Sincerely,

Emily Rooney
President
Agricultural Council of California

Cynthia L. Cory
Director, Environmental Affairs
California Farm Bureau Federation

Trudi Hughes
Government Affairs Director
California League of Food Processors

Food and Ag Coalition Expresses Concerns and Makes Recommendations on Prop 65 Proposed Regulations

 

April 8, 2015

Monet Vela
California Environmental Protection Agency
Office of Environmental Health Hazard Assessment PO Box 4010
1001 I Street
Sacramento, CA 95812

Subject: Clear and Reasonable Warnings Regulation

Dear Ms. Vela:

The Food and Agriculture Coalition (“Coalition”) appreciates the opportunity to comment on the Office of Environmental Health Hazard Assessment’s (“OEHHA’s”) proposed rule regarding Clear and Reasonable Warnings. The Coalition agrees with the comments submitted by the California Chamber of Commerce (“Chamber”) and therefore has signed on as part of its broader letter. However, we would like to highlight a number of issues that specifically impact the food and agriculture industry.

In a broader context, the Coalition is disappointed that the Administration has not pursued many of its original goals of Prop. 65 reform which were suggested in 2013.

These goals included (but were not limited to):

  • Cap or limit attorney’s fees in Proposition 65 cases.
  • Require stronger demonstration by plaintiffs that they have information to support claimsbefore litigation begins.
  • Require greater disclosure of plaintiff’s information.
  • Set limits on the amount of money in an enforcement case that can go into settlement fundsin lieu of penalties.
  • Provide the State with the ability to adjust the level at which Proposition 65 warnings areneeded for chemicals that cause reproductive harm.
  • Require more useful information to the public on what they are being exposed to and howthey can protect themselves.We strongly believe that without litigation reform, plaintiff’s attorneys will find other ways to pursue litigation under Prop. 65. Additionally, the so-called “naturally occurring” exemption for some chemicals found in the food supply needs to be significantly improved to be more useful for the food industry. While we appreciate OEHHA’s attempts at improving the existing regulation, absent fixes to these two issues, the reforms are not very meaningful.

In regards to the proposed regulation, the Coalition disagrees with OEHHA’s assessment that the suggested language will reduce litigation and have a minimal economic impact on business. Furthermore, the regulations also create more confusion for food producers and potentially consumers. As an example, the food and agriculture industry is still not clear on what food products have to participate in Prop. 65. The United States Department of Agriculture (USDA) and Food and Drug Administration (FDA) have jurisdiction on food labeling issues as it pertains to a number of food products. Unfortunately, there has been little clarity on this specific issue and the new regulations just offer more questions than answers in this regard.

Additionally, we are highly concerned as to what impacts these regulations will have on global agreements in international markets. According to UC Davis’s Agricultural Issues Center in 2012, California agriculture exported over $18 billion of products to over 100 countries around the world. Some food companies may not label food products that are meant for sale specifically in California due to complexities within food distribution systems. Therefore, these warnings could create alarm in other states and countries on healthy and nutritious foods. Countries that already have protectionist policies in place would likely use Prop. 65 to add further testing or turn away products that previously did not have any problems. As a result, the economic impacts for foods that have to provide warnings could be significant.

Proposed Section 25600 (d)
Subdivision (d) states that a person may provide supplemental information to the warning so long as the information does not “contradict, dilute, or diminish the warning.”

Because the draft does not define many terms, including what information that is “supplemental to the warning” and language that may “contradict, dilute or diminish the warning,” the Coalition is highly concerned that this language could increase litigation against the food industry.

The food industry invests millions of dollars in health and nutrition research to determine and promote the health benefits of many of its products. Examples include antioxidant levels in berries, improving bone health through the intake of dairy products and maintaining healthy cholesterol levels through the consumption of certain nuts. The Coalition is concerned that these statements on food packages could trigger litigation under the provisions outlined above regarding diluting or diminishing the warning. This is a potential moneymaker for private enforcers. We respectfully request OEHHA delete the qualifying language about verbiage that could “contradict, dilute or diminish the warning.”

Proposed Section 25600.2
The Coalition supports language in this section that would make it the requirement of the retailer to provide the warning, so long as the manufacturer provides the necessary materials. Oftentimes, the agricultural community sells products without entirely knowing its final destination. Food sent to a distribution center outside of California could be easily returned to the state without input from the original seller. It is also unrealistic to expect farmers and food processors to create separate labeling and distribution channels for California-specific products. Many distribution chains are created by the retailers and would greatly increase the economic burden of Prop. 65 for food and agriculture.

We believe that contractual agreements between the retailers and food producers could cover any remaining issues regarding how retailers display the warnings. This change would be a significant improvement in the regulation as it currently stands. The regulations as currently proposed by OEHHA would not work on a variety of food packages and could also conflict with FDA regulations as to what information goes onto on-product labels. Therefore, we support this language.

Proposed Section 25602
The Coalition opposes the automatic listing of the 12 chemicals. The proposed listing of these chemicals is totally arbitrary and not based on science. We underscore the comments provided by the Chamber that the uncertainty as to when a business should warn, coupled with an aggressive climate of litigation, make it impossible to establish with scientific certainty that no exposure is occurring at levels requiring a warning. This issue becomes especially problematic for chemicals that are present in our environment and absorbed by agricultural products, with no mitigation practices to minimize exposure other than avoiding consumption altogether.

Proposed Section 25603:
The Coalition is pleased that OEHHA attempts to provide some flexibility in the ability to provide Prop. 65 warnings. As outlined throughout these comments and those of the Chamber, providing a warning comes with a number of issues. We encourage OEHHA to allow for flexibility wherever possible in this regulation.

Another potential solution could be providing the flexibility of allowing a food producer to utilize a QR code to provide the warning. This new technology allows for greater flexibility to provide additional information for food companies that wish to utilize it.

Proposed Section 25604:
The Coalition is opposed to the use of the word “WARNING” in 10-point font. The FDA has strict regulations regarding what information is included in product labels and this type of warning is inconsistent with those regulations in that they require potential allergens to be labeled underneath the nutrition label, with no other “intervening material” present on this panel. There are also specifications regarding fonts and other labeling issues.

Additionally, a 10-point type font is extremely large for small food product packages. Should a food company need to provide a warning for Prop. 65, it would be extremely problematic for hundreds of food products that are sold in smaller packages.

The suggested language by OEHHA that states “Consuming this product can expose you to a chemical…” is not correct. For chemicals that are naturally occurring, there is no way to know whether or not the chemical is even in the food product, let alone whether or not an exposure may happen as a result. Therefore, we request OEHHA delete the language stating, “can expose you to,” and insert “may contain a chemical that.” This statement is more factually correct and therefore more consistent with OEHHA’s and the Governor’s desires to prevent over-warning.

Proposed Sections 25608.1 and 25608.2:
Section 25608 addresses warnings on food products. Like warnings for consumer products, the proposed regulation requires that the warning be enclosed in a box absent any prohibition imposed by federal law. The boxing proposal could unnecessarily confuse and mislead consumers by suggesting that the risk to the individual from exposure is of greater magnitude than it actually is. Similarly, boxing the warning may unintentionally elevate its importance over other mandated warnings or disclosures, thereby undermining their purpose. For these reasons, it makes sense to eliminate the boxing requirement for foods.

Like other consumer products, the proposed regulation would also require food warnings to appear in a foreign language where other labeling is provided in that language. For the reasons discussed above, the foreign language requirement is overboard and problematic, and particularly so with regard to foods where space limitations can be acute. OEHHA has acknowledged the need for warnings to have nuance and context. As a result, the proposed regulations should be revised to only require a food warning in an alternate language where other health-related warnings on a label are given in multiple languages.

In closing, the Food and Agriculture Coalition urges the Administration to pursue additional avenues of Prop. 65 reform, including litigation reform and improvements to the “naturally occurring” exemption, in addition to the aforementioned recommendations regarding the proposed regulation on Clear and Reasonable Warnings. This package of reforms would create more meaningful changes for producers and consumers. Thank you for the opportunity to comment. We look forward to working with you throughout this regulatory process.

Sincerely,

Agricultural Council of California

California Farm Bureau Federation

California League of Food Processors

Western Growers Association

 

Ag Council Supports Measure to Address “Overwarning” under Prop 65

 

February 25, 2015

The Honorable Bill Quirk California State Assembly State Capitol, Room 2163 Sacramento, CA 95814

SUBJECT: AB 543 (QUIRK) PROPOSITION 65: EXPOSURE

Dear Assembly Member Quirk:

The California Chamber of Commerce and the undersigned organizations SUPPORT your AB 543 (QUIRK), which would promote the use of and reliance on a scientific exposure assessment when making decisions about whether or not to warn under the Safe Drinking Water and Toxic Enforcement Act of 1986 (“Proposition 65”).

Proposition 65 requires California businesses with 10 or more employees to provide a clear and reasonable warning before “knowingly and intentionally” exposing individual to chemicals known to cause cancer and/or reproductive toxicity. Businesses may use a Proposition 65-listed chemical without providing a warning so long as the exposure does not exceed a specified threshold level. Notwithstanding this so-called “safe harbor” from the warning requirement, businesses often provide warnings on their products or facilities out of an abundance of caution, even if no chemical exposure is present or if the chemical exposure is occurring below specified threshold levels. This is because if a business rightfully and lawfully elects not to warn on the basis that its scientific exposure assessment concludes that the exposure does not exceed the threshold level, its risk of being sued is actually greater than if it provides a warning unnecessarily.

This unfortunate reality has resulted in what is often-referred to as the “overwarning” problem, where California consumers are warned about chemical exposures that are either non-existent or that are occurring at infinitesimal levels. The Government, the NGO community, and the business community, have acknowledged that overwarning is a problem. Even the California Supreme Court has noted that “the problems of overwarning are exacerbated if warnings must be given even as to very remote risks.” Dowhal v. SmithKline Beecham Consumer Healthcare, 32 Cal.4th 910, 932-35 (2004), quoting Carlin v. Superior Court, 13 Cal.4th 1104, 1115 (1997).

AB 543 is a modest improvement that encourages the use of a scientific exposure assessment by providing that a business does not “knowingly and intentionally” expose individuals to Proposition 65- listed chemicals and thus need not provide a warning if the exposure assessment (1) is documented in writing and prepared by or under the supervision of a qualified scientist; (2) is conducted in accordance with existing regulations; and (3) concludes that the business is not exposing an individual to a Proposition 65-listed chemical at a level requiring a warning.

By clarifying the circumstances in which a business would not be deemed to have the requisite knowledge and intent necessary to support an alleged violation, AB 543 will create an incentive—where none currently exists—for a business to use science as the predicate for a decision to warn or not. Accordingly, AB 543 will provide businesses with greater confidence in the utility of conducting scientific exposure assessments and, in doing so, will restore meaning to warnings that the law actual requires to advise consumers about chemical exposures exceeding Proposition 65 warning levels. For these reasons, we support your AB 543 (Quirk).

Sincerely,

California Chamber of Commerce
Agricultural Council of California
Alhambra Chamber of Commerce
American Apparel and Footwear Association
American Coatings Association
American Composite Manufacturers Association
American Frozen Foods Institute
American Herbal Products Association
Associated Roofing Contractors of the Bay Area Counties, Inc.
Association of Home Appliance Manufacturers
Automotive Specialty Products Alliance
Breen Color Concentrates
Building Owners and Managers Association of California
California Apartment Association
California Association of Boutique & Breakfast Inns
California Association of Health Facilities
California Association of Realtors
California Attractions and Parks Association
California Business Properties Association
California Cotton Ginners Association
California Cotton Growers Association
California Farm Bureau Federation
California Furniture Manufacturers Association
California Hospital Association
California Hotel and Lodging Association
California League of Food Processors
California Manufacturers and Technology Association
California Metals Coalition
California Paint Council
California Restaurant Association
California Retailers Association
California Small Business Alliance
Camarillo Chamber of Commerce
Chamber of Commerce, Mountain View
Chemical Industry Council of California
Commercial Real Estate Development Association
Composite Panel Association
Consumer Electronics Association
Consumer Specialty Products Association
El Centro Chamber of Commerce
Fashion Accessories Shippers Association
Frozen Potato Products Institute
Fullerton Chamber of Commerce
Goleta Valley Chamber of Commerce
Greater San Fernando Valley Chamber of Commerce
Grocery Manufacturers Association
Industrial Environmental Association
Information Technology Industry Council
International Council of Shopping Centers
International Franchise Association
ISSA, the Worldwide Cleaning Industry Association
Lonseal
Metal Finishing Association of Northern California
Metal Finishing Association of Southern California
National Aerosol Association
National Council of Textile Organizations
National Electrical Manufacturers Association
National Federation of Independent Businesses
National Shooting Sports Foundation
North American Home Furnishings Association
Orange Chamber of Commerce
Oxnard Chamber of Commerce
Palm Desert Area Chamber of Commerce
Personal Care Products Council
Plumbing Manufacturers International
Printing Industries of California
Redondo Beach Chamber of Commerce
Ripon Chamber of Commerce
Rubber Manufacturers Association
San Diego Regional Chamber of Commerce
Santa Clara Chamber of Commerce and Convention-Visitors Bureau
Santa Maria Chamber of Commerce and Visitors Bureau
Simi Valley Chamber of Commerce
South Bay Association of Chambers of Commerce
Southwest California Leadership Council
Sporting Arms and Ammunition Manufacturers Institute
Styrene Information Research Center
The Art and Creative Materials Institute, Inc.
The Chamber of Commerce of the Santa Barbara Region
The Greater Riverside Chamber of Commerce
Travel Goods Association
Toy Industry Association
West Coast Lumber and Building Materials Association
Western Agricultural Processors Association
Western Growers Association
Western Plant Health Association
Writing Instrument Manufacturers Association

cc: Office of the Governor
District Office, Assembly Member Quirk

 

Ag Council & Others Raise Concerns Regarding Prop 65 Pre-Regulatory Proposal

The Brown Administration continues to seek reform on Proposition 65, a voter-passed initiative that could result in warning labels on food.  Ag Council has been a lead in discussions on these regulations and their potential impact to food.

In 2014, Ag Council and other ag groups joined together to provide formal comments (see below) to the Office of Environmental Health Hazard Assessment (OEHHA) about the pre-regulatory proposal on Proposition 65 warnings. The comments express agriculture’s desire to work on solutions with respect to food. The comment letter states that we do not support a “one size fits all” approach for food and agriculture. In particular, the comments highlight agriculture’s fear that new warning labels may confuse customers and give the false impression that food safety concerns exist when this is not accurate.

Ag Council continues its work with OEHHA to ensure that consumers are not misled when they should be eating more, not less, of the healthy food our members produce.

Ag Council Expresses Concerns Regarding Prop 65 Proposal

Ag Council and other ag groups join together to provide formal comments on the pre-regulatory Prop 65 proposal

June 2014 FoodAg Coalition P65 Comments on Warnings 6.13

June 2014 FoodAg Coalition P65 (2)

June 2014 FoodAg Coalition P65 (3)

Creating a Future for Proposition 65 Reform

By Emily Rooney, President, Agricultural Council of California

In May 2013, Governor Brown announced an effort to reform Proposition 65, a voter-approved initiative that passed in 1986.  Originally written to warn Californians about potential exposure to hazardous chemicals that could cause cancer or reproductive harm in drinking water, Prop. 65 has evolved beyond just water to require warning labels for a vast array of products.

Many of the compounds of concern can be found in food products. Several of these chemicals actually occur naturally in soil, plants and other types of foods, or are incorporated into products for food safety reasons. They are only considered toxic if consumed at extremely high levels. In many cases, trace amounts have already been deemed safe by the FDA.

The increased scope of the regulation has created an opportunity for plaintiffs’ attorneys to cash in at the expense of many businesses in California.  Any product that does not have a warning label and is found positive for containing a listed chemical, is at risk for litigation.  A quick search on the California Attorney General’s website reveals that attorneys have profited in the millions of dollars   every year.

Through his proposed reform efforts, Governor Brown aimed to minimize “shake-down” lawsuits, improve the warning system and strengthen scientific information that is utilized in the warning process.  His goal for reform had a number of hurdles, including requiring a two-thirds vote of the California legislature for approval.

The governor’s office embarked on an ambitious effort to develop consensus among stakeholder groups to have strong momentum heading into the legislature.  After several weeks of negotiations, the effort failed last year.  This is not surprising, given the array of personal interests at the table.

As a result, the administration will have to focus on improving Prop. 65 through its regulatory authority.  Unfortunately, litigation reform does not seem likely without a legislative fix.  In spite of that limitation, Prop. 65 can still be improved in the following areas:

  • Improving the regulatory process for food products;
  • Providing more meaningful warnings to consumers; and,
  • Clarifying the regulations for chemicals that occur naturally.

One of those improvements has already been achieved.  The California Department of Food and Agriculture (CDFA)  joined in a memorandum of understanding (MOU) with California Environmental Protection Agency (CalEPA) to participate in the regulatory process when it could impact food products. CDFA can provide input in the listing process, and can also provide data and other scientific information to CalEPA as the agency develops regulations. This is a strong, positive step.

Second, CalEPA is developing warning regulations that could provide more flexibility for manufacturers.  The agency is evaluating the possibility of providing other options in lieu of on-product warnings, such as via the Internet or on a store receipt.  Those regulations are under consideration and are likely to be released for public comment in the next few months.

Lastly, CalEPA is examining the regulation for chemicals that occur naturally. Currently, there is a very narrow exclusion for these types of chemicals, and the courts are defining the boundaries through litigation.

Even though litigation reform does not have a clear solution at this time, we will continue to work with the administration and members of the legislature to try to create momentum to pursue the effort.  Litigation reform was the basis of the Governor’s original call-to-action last year, and many still believe this is the greatest weakness of Prop. 65.

Regulatory reform efforts in California take a creative, proactive approach.   Fortunately, Governor Brown’s administration has created an environment to encourage collaboration between agencies. We are hopeful these new bridges will be beneficial for agriculture on not only Prop. 65, but other issues as well.

This op-ed was printed in Almond Advantage, a publication by Almond Hullers and Processors Association, in the January-February 2014 issue.