USA – CALIFORNIA Trends and Developments Contributed by: Anne Marie Ellis, Marissa Alkhazov, Steven Di Saia and Christopher Van Gundy, Buchalter, LLP
There is a three-year transition period. Products man - ufactured and labelled before 1 January 2028 may continue to use the old short-form language with an unlimited sell-through ‒ meaning those products can remain on shelves indefinitely. But any product manu - factured on or after that date must carry the revised warning. OEHHA also expanded the short-form’s availability to food products, which were previously limited to long- form warnings only. That change matters for the heavy metals and PFAS issues discussed above: food com - panies that previously had no short-form option now have one, but it requires chemical-name disclosure that many would prefer to avoid. The practical consequences of these changes are more complicated than they appear. Under the old regime, a generic “cancer and repro - ductive harm” warning gave plaintiffs little to work with beyond the warning’s existence. Naming a specific chemical on the label ‒ say, lead, or perfluoroocta - noic acid (PFOA) ‒ hands a false advertising plaintiff exactly the factual hook needed to build a consumer deception claim. “The company knew the product contained lead. It said so on the label. Yet it marketed the product as ‘clean’ and ‘safe for children.’” That is not a hypothetical; it is the structure of complaints that are already being seen. The warning intended to provide safe harbour under Prop 65 becomes the fac - tual predicate for a Consumer Legal Remedies Act (CLRA) claim. Where a product contains multiple listed chemicals ‒ common in foods, cosmetics, and supplements ‒ the regulation requires disclosure of only one per endpoint. But the selection has consequences. Nam - ing lead may invite scrutiny from the heavy metals enforcement pipeline, while naming PFOA can trig - ger the PFAS-related concerns. Choosing a less well- known chemical may create the risk that a plaintiff will argue the company deliberately concealed the pres - ence of the more dangerous substance. There is no neutral choice, and the regulation offers no guidance on selection criteria.
Three years sounds generous. It is not. Companies need to audit their entire product portfolio, determine which chemicals trigger warnings for each stock- keeping unit (SKU), co-ordinate label changes across packaging, websites, product pages, and third-party retail platforms, and align with downstream retailers, which have their own 60-day window to update online warnings after a manufacturer changes label content. For companies with hundreds or thousands of SKUs, that is a major operational undertaking that needs to start now, not in 2027. Silica: An Epidemic of Litigation At a recent conference, a plaintiffs’ attorney called it “The Asbestos Lawyers’ Full Employment Act.” It drew an uncomfortable laugh, but the point landed. The plaintiffs’ bar has spent years looking for the next mass toxic tort. Asbestos litigation, after decades of battle and immeasurable cost, is winding down. Silica litigation looks like the heir apparent. The product and the problem Natural stone slabs have served as countertop mate - rial for centuries. With rising costs, limited supply, and demand for variety that quarried stone cannot satisfy, the market shifted toward engineered stone ‒ prod - ucts made by combining crushed stone with bind - ing agents to form solid slabs that can substitute for granite or marble. Neither natural nor engineered stone slabs are ready for installation. Fabrication ‒ cutting, grinding, edging, polishing ‒ is required to fit each slab to its applica - tion. Plaintiffs allege that fabrication workers inhale high concentrations of respirable crystalline silica dur - ing this process, causing chronic silicosis and related diseases. For engineered stone, the claims extend further to proposed exposure to metals used as pig - ments, polymeric resin binders, and volatile organic compounds (VOCs) released during cutting. Silicosis has some documented incidence in this industry. As demand for stone countertops surged, fabrication expanded into smaller shops operating in warehouse settings with minimal attention to training, ventilation, wet-cutting protocols, or protective equip - ment. The plaintiffs’ side argues that no engineering
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