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ICMAD Regulatory Update

By: Jeff Falk
Posted: March 7, 2007

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The attorney generals expects manufacturers (and to some extent, retailers) to understand the list of chemicals. This is not a simple task. Chemical beyond the label must understood, as well as any interactions under any condition. One example of this type of interaction is starches submitted to high heat (cereals, french fries and virtually all snack foods), which produce acrylamide¬. There are other hidden offenders. Most plant–based materials include metals. Herbal extracts, for example, contain cadmium, arsenic and lead in high enough trace amounts to be in violation. Tea has levels of arsenic. Both examples assure that naturals and organics are no safer to Prop 65 rules than non-naturals. Again, both manufacturers and retailers are charged with the duty of knowing the chemical composition of product and packaging, and they are also expected to have a working knowledge of the new chemicals that may form as a product sits.

There have been positive developments for the defense side over the last year and a half. Chocolate manufactures have won against Prop 65 suits over lead content (all chocolate has natural trace amounts of lead), and the California “tuna wars” brought the most decisive Prop 65 victory for the defense. The attorney general charged the tuna industry was in violation of Prop 65 standards for mercury content. The defense was able to prove, however, that consumers, regardless of the level of mercury content in a tuna fish, are not exposed to that dosage in a can or serving of tuna. The real percentage was lower than Prop 65 standards.

Praitis’ final message is that no one—lawyers, those who watch regulation issues, the state itself—knows how Prop 65 will affect cosmetic manufactures. There is no consensus as to whether the state has the resources to actively pursue another regulatory issue in court or how courts will translate Prop 65 wording and standards to cosmetics.