Atlantic Legal Foundation Requests California Supreme Court To “Depublish” Proposition 65 Listing Opinion

I was pleased to assist Dan Fisk, Chairman & President of the Atlantic Legal Foundation, with preparation of a request to the Supreme Court of California for “depublication” of a state Court of Appeal opinion holding, in litigation brought by the American Chemistry Council, that the State’s Office of Environmental Health Hazard Assessment (“OEHHA”) did not abuse its discretion by adding to the Proposition 65 list a chemical which that agency’s own panel of reproductive toxicity experts concluded should not be listed.

The Foundation’s December 17, 2020 depublication request letter seeks depublication of a  California Court of Appeal opinion that rejected an industry challenge to the listing of bisphenol A (“BPA”) as a reproductive toxicant under the California Safe Drinking Water and Toxic Enforcement Act of 1986, a notorious “right-to-know” law commonly known as “Proposition 65.” Once a chemical is added to the Proposition 65 reproductive toxicants list, California businesses are required to warn workers and the public that the chemical is “known to the State” to cause birth defects or other reproductive harm. California’s branding of BPA as a Proposition 65 chemical that causes birth defects or other reproductive harm in humans conflict with the carefully considered scientific findings of OEHHA’s own panel of toxicology experts, and to a scientific monograph on BPA issued by the National Toxicology Program.

BPA is a chemical that has been widely used in connection with the manufacture of food and beverage packaging and containers. The Foundation’s letter explains that OEHHA added BPA to the list of Proposition 65 chemicals “known to the State” to cause reproductive toxicity based on a National Toxicology Program report that expressly stated there is “insufficient evidence” to conclude that BPA causes reproductive toxicity in humans. OEHHA also ignored the determination of its own panel of scientific experts (the Developmental and Reproductive Toxicant Identification Committee (“DART-IC”)) that BPA should not be listed as a Proposition 65 human reproductive toxicant.

The American Chemistry Council had challenged the Proposition 65 listing of BPA in a California state trial court. The court held that OEHHA did not abuse its discretion when listing BPA, and a three-judge panel of the California Court of Appeal (Third Appellate District) affirmed. A copy of the Court of Appeal opinion, which that Court designated for publication, can be accessed here. (The opinion was subsequently modified to correct several typographical errors).

Under the California Rules of Court, any person can request that a published Court of Appeal opinion be “depublished,” thereby removing its precedential authority.

John M. Kalas and his colleague Samarth Barot of Hollingsworth LLP in Washington D.C., along with Advisory Council member Ana Tagvoryan of Blank Rome LLP in Los Angeles, also assisted with preparation and filing of the depublication request.

On December 18, Kahn A. Scolnick of Gibson Dun, & Crutcher LLP, on behalf of the American Chemistry Council, filed a letter with the California Supreme Court joining in the Atlantic Legal Foundation’s depublication request.

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