New Limits on California's Prop 65: Court Ruling Reinforces Need for Solid Science Behind Warnings

While California’s Proposition 65 (“Prop 65”) was initially heralded as a landmark consumer protection measure initiated by California voters, Prop 65 has now become the topic of countless lawsuits and presents a perilous regulatory framework for many industries to navigate.

Also known as California’s Safe Drinking Water and Toxic Enforcement Act of 1986, Prop 65 is a law that requires the State of California to publish and maintain a list of chemicals known to cause cancer, birth defects or other reproductive harm. The list is maintained and updated by the California Office of Environmental Health Hazard Assessment (“OEHHA”). OEHHA may add chemicals to the list based on various mechanisms, including scientific research, identification by other authoritative bodies or independent state qualified experts, and/or requirements set by state or federal government agencies to be identified or labeled. Without an exemption, Prop 65 requires businesses with 10 or more employees to provide a clear and reasonable warning to consumers before knowingly and intentionally exposing them to chemicals on the Prop 65 list. The list now includes over 900 chemicals, ranging from industrial chemicals to ingredients in everyday products. Fortunately, a recent industry win occurred in the Eastern District of California matter of The Personal Care Products Council v. Rob Bonta¹. Chief Judge Nunley found that Prop 65’s warning requirement is unconstitutional as to the listed chemical titanium dioxide (airborne, unbound particles of respirable size) in cosmetics and personal care products. Because Prop 65 warning speech is considered compelled commercial speech, it is subject to a First Amendment

challenge. The government may only compel commercial speech so long as it is reasonably related to a substantial government interest, and the compelled speech is purely factual, noncontroversial, and not unjustified or unduly burdensome.

In reaching his decision, Judge Nunley found that current scientific research on titanium dioxide does not clearly show that titanium dioxide causes cancer. Therefore, the warning required under Prop 65 is not purely factual or noncontroversial. The court found that the Prop 65 warning with respect to titanium dioxide does not pass intermediate scrutiny and is therefore unconstitutional, in violation of the First Amendment. Thus, the court granted a permanent injunction to prevent the filing of any new lawsuits to enforce Prop 65’s warning requirement as applied to titanium dioxide in cosmetics and personal care products.

Judge Nunley’s ruling marks a turning point for companies doing business in California who face Prop 65 litigation over chemicals where the scientific research is uncertain. By holding that a Prop 65 warning can violate the First Amendment, the court has put limits on the state’s power to compel speech that could mislead consumers. Now, courts will have to dive into the objective, scientific evidence behind chemical warnings instead of greenlighting any general findings from state agencies. As noted in The Personal Care Products Council matter, although California has a substantial interest in preserving the health of its citizens, forcing businesses to warn of risks that are not confirmed by scientific research does not advance this interest. Ultimately, this will also serve consumers better as cancer warnings will be restricted to products that actually contain ingredients known to cause cancer, allowing consumers to make more informed choices.

Conclusion

Importantly, the decision has put a stop to the countless Prop 65 lawsuits over titanium dioxide against cosmetic and personal care brands. Looking ahead, the decision reached in The Personal Care Products Council case provides an important framework to challenge required warnings where the supporting scientific research is uncertain. In this evolving legal landscape, cosmetic and personal care companies should be aware that Prop 65 warning requirements must not infringe on First Amendment protections and must be firmly supported by scientific evidence.