MLA Proposition 65 Advisory
Court's Ruling that IARC Designation of Chemicals as "Group 2B" Carcinogens Is Not Sufficient Basis for Listing Under "Labor Code Listing Mechanism" Examines Bases for Determining Whether a Chemical is "Known to the State to Cause Cancer"
The California Court of Appeal, Third Appellate District, issued a long-awaited decision in the case of Styrene Information and Research Center v. OEHHA, et al., (“SIRC”) No. C064301, on October 31, 2012. In a unanimous opinion, the Court upheld a ruling by the Superior Court for Sacramento that enjoined the State’s Office of Environmental Health Hazard Assessment (“OEHHA”) from listing two chemicals – styrene and vinyl acetate – as chemicals “known to the state to cause cancer” for purposes of the Safe Drinking Water & Toxic Enforcement Act (commonly referred to as “Proposition 65”).
In reaching this decision, the SIRC Court interpreted two of its previous opinions arising from Proposition 65 listing disputes: (1) AFL-CIO v. Deukmejian (1989) 212 Cal.App.3rd 425 (“Deukmejian”),which held that Proposition 65 requires listing of chemicals shown to be carcinogenic on the basis of animal testing alone; and, (2) Western Crop Protection Ass’n v. Davis, (2000) 80 Cal.App.4th 741 (“WCPA”), which authorized the listing of chemicals as reproductive toxicants on the basis of their inclusion on the federal Toxics Release Inventory (“TRI”), on a case-by-case basis. The Court also drew upon the recent decision of the Fourth Appellate District in California Chamber of Commerce v. Brown (2011) 196 Cal.App.4th 233 (“Cal/Chamber”), which upheld the validity of the highly controversial “Labor Code Listing Mechanism.”
The SIRC opinion, addressing all of these landmark decisions in a single factual context, offers new guidance for companies whose chemical products are proposed for listing under the Labor Code Listing Mechanism. The ruling demonstrates that the ultimate test in determining whether a chemical should be listed under Proposition 65 is whether the substance is “known to the state to cause cancer or reproductive toxicity,” and suggests that judicial review may be available to examine whether that standard is met, regardless of which Listing Mechanism is employed.
McKenna Long & Aldridge LLP represented the Vinyl Acetate Council at the trial level in this matter. We were pleased to assist in developing the record regarding the proper interpretation of the federal Hazard Communication Standard ("HazCom Standard"). We offer our analysis below.
The Argument for Listing
The Court’s Decision
In the balance of the opinion, however, the Court unraveled OEHHA’s argument for listing Group 2B chemicals. The Court began by placing its previous Deukmejian ruling in proper context.
The Court explained that Deukmejian arose from the Governor’s decision to include on the initial Proposition 65 list only chemicals that were known to be human carcinogens, excluding chemicals for which the only evidence of carcinogenicity was animal data. Quoting from Deukmejian, the Court wrote: “Although [Proposition 65] clearly was intended to protect people and not household pets or livestock, the suggestion that only known human carcinogens are subject to [Proposition 65] ignores the plain language of section 25249.8 . . . which mandates the initial list include, ‘at a minimum,’ those chemicals identified by reference in Labor Code section 6382 . . . [which] refers expressly both to human and animal carcinogens and . . . incorporates the [HazCom Standard] which includes known animal carcinogens.”
Nevertheless, “the standard remains known carcinogens.” (Emphasis in original.) “[O]ur decision in Deukmejian was premised on an understanding that, for chemicals included in Group 2B, there was sufficient evidence of carcinogenicity in animals. . . . But, . . . that is not in fact necessarily the case. Group 2B includes substances for which ‘there is limited evidence of carcinogenicity in humans and less than sufficient evidence of carcinogenicity in experimental animals.” (Emphasis in original.)
Finally with respect to Deukmejian, the Court wrote: “[T]he only issue presented in Deukmejian was whether the Proposition 65 list must include both human and animal carcinogens, and we answered that question in the affirmative. We were not asked to consider the question here, i.e., whether substances indentified by reference in an IARC monograph for which there is not sufficient evidence of carcinogenicity in either humans or animals must be included on the list.” (Emphasis added.)
Turning to this pivotal issue, the State addressed OEHHA’s other principal argument. The Agency contended that the language of Section 25249.8, referring to the provisions of section 6382 of the Labor Code that address “any substance within the scope of the federal [HazCom Standard],” dictates “that any chemical that meets [these statutory] criteria is, by definition, “known to the state to cause cancer . . . .” (Emphasis in original.) In support, OEHHA argued that documents issued by the federal Occupational Safety and Health Administration (“OSHA”) providing guidance on compliance with the HazCom Standard “make clear that all Group 1, 2A and 2B chemicals are to be considered carcinogens under the [Standard].”
The argument above is circular. As the Court explained, “the [HazCom Standard] is concerned with ‘hazardous chemicals’ . . . which include more than ‘chemicals known to the state to cause cancer . . . .” Of course, the phrase “‘any substance within the scope of the federal [HazCom Standard]’ includes chemicals other than known carcinogens.” Proposition 65 “itself, however, [is] concerned only with those substances that . . . are known to cause cancer or reproductive toxicity. Thus, the initial [Proposition 65] list . . . need not include all substances listed under [the HazCom Standard] but only those known carcinogens and reproductive toxins listed there.” (Emphasis added.)
As to the OSHA guidance documents, the Court responded: “[t]his is not surprising since . . . the [HazCom Standard] expressly states that manufacturers, importers and employers must treat various sources, including IARC monographs, ‘as establishing that a chemical is a carcinogen or potential carcinogen for hazard communication purposes.’ (Emphasis added.) Thus, the [HazCom Standard], by its very terms, is not concerned solely with chemicals that are known to cause cancer . . . .”
Guidance for Future Disputes?
In WCPA, the plaintiff argued that the listing of chemicals as reproductive toxicants solely because they were designated for reporting under the TRI, administered by the United States Environmental Protection Agency (EPA) was improper, because EPA’s TRI standard required listing of all chemicals that “either cause or ‘can be reasonably anticipated to cause’ reproductive toxicity.”
Given the absence in the record of any evidence to demonstrate what standard EPA had applied with respect to individual chemicals, the Court declined to provide the plaintiff any relief: “on the record before us, we could not ascertain whether the standard applied by the EPA was broader than that applicable to Proposition 65. We then went on to assess whether, assuming the EPA standard is broader, OEHHA could nevertheless determine on a chemical-by-chemical basis whether the criteria used by the EPA satisfied the Proposition 65 standard.” (Emphasis added).
“In other words, as long as there is sufficient evidence that EPA placed a particular chemical on the TRI list based on criteria sufficient to satisfy Proposition 65’s requirement that the chemical be known to cause reproductive toxicity, it does not matter that the federal standard may otherwise be broader and that other chemicals may have been placed on the TRI list based on a lesser showing.” (Emphasis added).
Known to Cause Cancer or Reproductive Toxicity