210 Cal. App. 4th 1082
Cal. Ct. App.2012Background
- Prop 65 requires Governor to publish and annually revise a list of chemicals known to cause cancer or reproductive toxicity.
- The list must minimally include substances identified by Labor Code 6382(b)(1) and (d); (d) refers to substances within the Hazard Communication Standard (HCS) and IARC monographs.
- IARC groups chemicals as Group 1 (known to cause cancer), Group 2A (probably carcinogenic), Group 2B (possibly carcinogenic).
- In Deukmejian, the court held the initial list must include known carcinogens identified by the Labor Code reference (human and animal).
- OEHHA used the Labor Code mechanism to list chemicals; listing based solely on IARC Group 2B is not automatically constitutionally sufficient under Prop 65.
- This appeal concerns OEHHA’s proposed listing of styrene and vinyl acetate and whether they may be listed as known carcinogens under Prop 65; trial court ruled for plaintiffs on this point, and the appellate court affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can IARC Group 2B chemicals be listed as known carcinogens? | SIRC claims 2B chemicals may be listed under Labor Code mechanisms. | OEHHA argues HCS-based references include 2B as carcinogenic for listing. | No; listing requires known carcinogens; 2B alone insufficient. |
| May the Labor Code mechanism update the Prop 65 list with current HCS references (not frozen at enactment)? | SIRC argues list frozen at enactment; must not update. | OEHHA contends updates permitted as HCS lists change. | Yes; Labor Code mechanism allows updating the list. |
| Is Deukmejian controlling for interpreting section 25249.8 and listing scope? | Deukmejian requires listing of human and animal carcinogens identified by Labor Code references. | OEHHA seeks broader interpretation via HCS/IARC. | Deukmejian persuasive; list limited to known carcinogens, not all 2B monograph mentions. |
Key Cases Cited
- AFL-CIO v. Deukmejian, 212 Cal.App.3d 425 (Cal. Ct. App. 1989) (held initial list must include known human and animal carcinogens identified by Labor Code 6382(b)(1) and (d))
- Brown v. California, 196 Cal.App.4th 233 (Cal. Ct. App. 2011) (interpreted HSITA and HCS linkage; listed substances may be updated beyond enactment; cautioned agency practices)
- Palermo v. Stockton Theatres, Inc., 32 Cal.2d 53 (Cal. 1948) (adopts incorporation principles for references to other statutes/regulations)
- Western Crop Protection Assn. v. Davis, 80 Cal.App.4th 741 (Cal. Ct. App. 2000) (an EPA/TRI listing could satisfy Prop 65 criteria on a chemical-by-chemical basis if evidence meets state standard)