California Chamber of Commerce v. Brown
126 Cal. Rptr. 3d 214
Cal. Ct. App.2011Background
- California voters enacted Prop. 65 to publish a list of chemicals known to cause cancer or reproductive toxicity and to revise it at least annually.
- Health and Safety Code 25249.8 governs the list, with subdivision (a) listing a Labor Code reference method and subdivision (b) detailing three additional listing methods.
- The Labor Code reference method lists substances identified by Labor Code 6382(b)(1) (IARC carcinogens) and 6382(d) (substances within the federal Hazard Communication Standard).
- A 1989 Deukmejian decision held the initial list must include chemicals identified by Labor Code references and that subdivision (b) methods supplement (a) for ongoing updates.
- CalChamber challenged OEHHA’s use of the Labor Code reference method to add chemicals post-initial list; OEHHA defended continued use as part of Prop. 65’sActualizar process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does 25249.8(a) keep the Labor Code reference method operative for revisions? | CalChamber: method applies only to initial list, not ongoing updates. | OEHHA: subdivision (a) fixes minimum content for all iterations of the list; (b) methods supplement. | Labor Code reference method remains minimum content for revisions. |
| Do substances identified under 6382(d) include ACGIH-listed reproductive toxins? | CalChamber: 6382(d) ambiguous; does not expressly name ACGIH as a source for reproductive toxins. | OEHHA: 6382(d) refers to substances within the scope of the federal HCS, which includes ACGIH under (d)(3)/(d)(4) pathways. | Yes; reproductive toxins on the current ACGIH list are encompassed. |
| Is the statutory language ambiguous, requiring interpretive aids? | CalChamber: language is ambiguous and should be construed against continued Labor Code reference usage. | OEHHA: language can be read consistently with ballot history and remedial purpose to include ongoing updates. | Language is ambiguous; interpretation favors keeping Labor Code reference method and including ACGIH-based toxins. |
| Does the ballot history support including ACGIH and other sources beyond NTP/IARC? | CalChamber: ballot materials emphasized NTP/IARC, not ACGIH. | Ballot language is illustrative; purpose was scientific basis and broad listing, not strictly limited to NTP/IARC. | Ballot history supports including ACGIH via the Labor Code reference method. |
Key Cases Cited
- AFL-CIO v. Deukmejian, 212 Cal.App.3d 425 (Cal. App. 1989) (initial list must include Labor Code-referenced carcinogens)
- Baxter Healthcare Corp. v. Denton, 120 Cal.App.4th 333 (Cal. App. 2004) (minimum content and procedures for exemptions under Prop. 65)
- Exxon Mobil Corp. v. Office of Environmental Health Hazard Assessment, 169 Cal.App.4th 1264 (Cal. App. 2009) (limitations on agency’s independent scientific judgment under listing mechanisms)
- Palermo v. Stockton Theatres, Inc., 32 Cal.2d 53 (Cal. 1948) (incorporation of referenced statutes via Palermo rule; contemporaneous form governs)
- Lungren v. Superior Court, 14 Cal.4th 294 (Cal. 1996) (remedial statutes should be broadly construed)