Dennis Raglin Quoted in Daily Journals’ Sacramento Docket: “Proposition 65 Feels the Ache of Middle Age”

Dennis Raglin was quoted in the Daily Journal’s Sacramento Docket newsletter in an article titled “Proposition 65 Feels the Ache of Middle Age.” The article discusses California’s Proposition 65 cases, which make up more than half of the state’s annual claims bill. Prop 65 cases rarely make the list, let alone account for most of the cost.

Long considered one of the most influential environmental laws in the country, “we're kind of at a turning point with Prop. 65,” said Raglin.

Recent litigation that framed Prop 65 as a free-speech issue has found that the state cannot compel Prop 65 warnings where the science does not support an actual risk to humans. Raglin points to four courts that have recently found “Prop 65 warnings unconstitutional” when applied to certain chemicals, creating “probably the biggest challenge the law has ever faced.”

“There are many chemicals on the Prop 65 list that were listed on shaky science, or with no human data, and/or without EPA finding the chemical hazardous,” Raglin said. “Many chemicals on the list are now candidates to challenge.”

Raglin added that more difficulties might be coming for supporters of the law, from a U.S. Supreme Court decision that does not mention California or Prop 65. Monsanto Co. v. Durnell found that federal law bars states from imposing cancer-warning requirements on glyphosate-based herbicides, such as Roundup, that differ from labeling approved by the U.S. Environmental Protection Agency.

Monsanto is part of a larger turf war over the right to set policy. The court decided it on federal preemption grounds rather than the First Amendment. But in a recent article published by Carlton Fields, Raglin wrote that the preemption defense is “only half of a two-pronged attack” against Prop 65 that can be used with First Amendment claims.

Prop 65 relies on someone sticking their neck out to enforce it. Raglin said the “AG only takes on a few cases — sometimes none for a few years,” and usually only if it is a “big deal” like potentially toxic baby formula. If the cost of these cases shoots up at a time when the attorney general has many other litigation commitments, companies could see far fewer cases under the law. Raglin said the settlements show the state paying court costs and attorney fees of up to $1,500 an hour. “It shows the staggering amount it costs the state taxpayers to fight these uphill cases,” he said.

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