Mark S. Granger
GRANGER LEGAL CONSULTING
Mark S. Granger

  Mark S. Granger
  Admitted to Practice in MA and NY

  GRANGER LEGAL CONSULTING
  PO Box 487, 1094 US RT 9
  Schroon Lake, NY 12870

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CA APPEALS COURT HEARS ARGUMENTS THAT EVEN TRACE
AMOUNTS OF LEAD SHOULD BE WARNED ABOUT OR BANNED

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If you hear regularly from me on Prop 65 and the CPSIA, you know I'm always saying: "Get the Lead and the Phthalates out!" A California mid-level appeals court, just heard arguments that even trace amounts of lead should be banned without a Proposition 65 full warning.

Plaintiffs argued that "the state's toxic substances warning law, should require notice if a product contains any lead, arguing the state adopted safe lead levels from a federal agency whole cloth and flouted the local law by not doing its own scientific research."

As you know, currently in California, products with less than 100 ppm lead content or with surface coatings of 90 ppm lead content do not generally require a warning under Proposition 65. These warnings are about to become more involved and burdensome in August 2018.

This is supported by OEHAA accepting OSHA workplace daily exposure levels for lead. The plaintiffs argued that the OSHA standard is inadequate for consumers and Prop 65 Standards should be based on weekly not daily exposure. The Office of Environmental Health Hazard Assessment (OEHAA) has accepted Federal OSHA exposure limits as a safe harbor for lead. It has also accepted CPSIA standards for lead content even though the CPSIA does not preempt Proposition 65 in specific language in the statute.

The plaintiffs also claim that OEHHA did not do any independent research on its own, but instead made its decision relying exclusively on OSHA's research.

The case is Mateel Environmental Justice Foundation v. Office of Environmental Health Hazard Assessment et al., case number A148711, in the California Court of Appeals for the First Appellate District, Division 2.

It is not clear how the appellate panel will rule, but the Judges put some tough questions to the Plaintiff's Counsel and did not seem satisfied with his answers.

I will keep you posted.

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