California Prop 65: DEA Judgment Reinforces First Amendment Limits On Warning Requirements

A stipulated judgment between The Personal Care Products Council (PCPC) and the California Attorney General reinforces First Amendment limits on certain warning requirements under California’s Proposition 65, which requires businesses to provide warnings for exposures to chemicals listed by the State as causing cancer or reproductive harm unless an exemption applies. The judgment resolves a challenge to warnings for diethanolamine (DEA) in cosmetics and personal care products and follows recent decisions rejecting compelled Prop 65 messages where the required message goes beyond what the underlying science supports. Going forward, state and private enforcers are permanently enjoined from pursuing Prop 65 enforcement actions based on an alleged failure to warn regarding exposures to DEA in cosmetics and personal care products. Companies facing pending or threatened Prop 65 enforcement activity involving DEA or other listed chemicals with disputed toxicity evidence should consider