American Chemistry Council v. Office of Environmental Health Hazard Assessment

Case Updates

The California Court of Appeal granted a request to publish its opinion upholding the Office of Environmental Health Hazard Assessment’s listing of diisononyl phthalate under California’s Proposition 65

Click here to view the decision.

The U.S. Chamber filed an amicus brief urging a California appeals court to hold that the California Office of Environmental Health Hazard Assessment (“OEHHA”) unlawfully failed to follow its own procedures when it listed diisononyl phthalate (“DINP”)—a common and useful chemical found in a wide range of everyday products—under California’s Proposition 65. The amicus brief explained that the listing of a substance under Proposition 65 has wide-ranging and serious consequences: not only is compliance with Proposition 65’s warning requirements itself burdensome, the failure to include a warning of any of the nearly 900 currently listed substances exposes businesses to lawyer-driven “bounty-hunter” lawsuits that are often cheaper to settle than to fight.

The amicus brief argues that Proposition 65 creates a perfect storm for compelling the settlement of even the most meritless lawsuits: not only are the penalties for Proposition 65 potentially ruinous, but the cost of defending against a Proposition 65 lawsuit is exceedingly high, frequently requiring extensive additional scientific research—even for substances that federal and international regulators do not consider unsafe. The amicus brief argued that OEHHA’s failure to follow its own procedures when listing substances under Proposition 65 unnecessarily burdens companies with meritless litigation and compliance costs, without meaningfully helping the public.

Fred A. Rowley, Jr., Patrick J. Cafferty, Jr., Jeffrey Y. Wu and David J. Feder of Munger, Tolles & Olson LLP served as co-counsel for the U.S. Chamber of Commerce on behalf of the U.S. Chamber Litigation Center.