Calif. court rules on toxic chemical list

Jessica M. Karmasek Jun. 8, 2011, 3:56pm


SAN FRANCISCO (Legal Newsline) - California's First District Court of Appeals said in a ruling Monday that a list of chemicals known to cause cancer or reproductive toxicity must be updated by a specific method set forth in state code.

In November 1986, California voters approved Proposition 65, an initiative that enacted the Safe Drinking Water and Toxic Enforcement Act of 1986, now set forth in Health and Safety Code section 25249.5 et seq.

Proposition 65 imposes two requirements on businesses. First, it prohibits businesses from discharging into drinking water sources any chemical known to the state to cause cancer or reproductive toxicity. Second, it requires businesses to provide a public warning if they knowingly and intentionally expose any individual to those chemicals.

Another key provision of Proposition 65 is its mandate that the governor publish that list of chemicals. This list, commonly referred to as the Proposition 65 list, is to be revised and republished in light of additional knowledge at least once per year.

At issue in California Chamber of Commerce v. Edmund G. Brown Jr. as Governor of California, etc., et al., are the methods by which the list can be updated, and specifically whether the Office of Environmental Health Hazard Assessment can add chemicals to the list by use of a methodology set forth in subdivision (a) of section 25249.8.

The California Chamber contends this listing method is "no longer operable" and applied only to the creation of the initial Proposition 65 list. It asserts further changes to the list must be made using one of the three methods set forth in subdivision (b) of section 25249.8.

However, the Alameda County Superior Court concluded the language of section 25249.8 was unambiguous and the listing method set forth in subdivision (a) remains operable.

Justice Kathleen M. Banke, who authored the appeals court's 38-page opinion, said the court did not agree that the statutory language is, in all respects, unambiguous.

However, the court agreed the Proposition 65 list not only can, but must be, updated according to the method used by the OEHHA and set forth in subdivision (a) of section 25249.8.

The appeals court affirmed the superior court's judgment.

From Legal Newsline: Reach Jessica Karmasek by e-mail at

More News