1. Proposition 65 Safe Water and Toxic Enforcement Act of 1986 Purpose: prevent exposure to toxics through water & other means Two approaches to managing risk: 1. Warning requirement 2. Discharge prohibition

2. Warning Requirement: Nicolle-Wagner v. Deukmejian Health & safety code § 25249.6 “No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in section 25249.10.” § 25249.10: no significant risk; burden on source

3. Nicolle-Wagner List of chemicals. § 25249.8 Regulations Agency may adopt regulations as necessary to implement this chapter and further its purposes. §25249.12(a)

4. Nicolle-Wagner Agency’s Regulation Human consumption of food is not “exposure” if person responsible for exposure can show chemical is “naturally occurring” “Naturally occurring” if — Natural constituent, or Solely result of absorption or accumulation of chemical naturally present in environment. Not naturally occurring if not good agricultural or manufacturing processes. Title 22 CCR § 12501

5. Nicolle-Wagner Challenge Regulation unlawful No categorical exemption in Prop 65 No distinction man made & natural substance State’s position: Regulation not in conflict with, and is reasonably necessary to effectuate, the statute Regulation interprets “expose” and “exposure” in § 25249.6

6. Nicolle-Wagner Holding Re Consistency With Statute Statute silent re naturally occurring toxins Thus must search for “subtle expressions” of intent Act sought to regulate substances deliberately added or put into the environment by human activity Rationale” “knowingly & intentionally” expose language suggests human activity Ballot arguments, for and against Indicators both ways; “better view” does not support plaintiffs

7. Nicolle-Wagner Court’s Reasoning Re Effectuating Statutory Purpose Substantial evidence test Most foods contain trace toxins; we presume healthful If not exempt, burden on manufacturers to prove; such evidence doesn’t exist Thus warnings would be needed on almost all food Warnings would be diluted to meaninglessness

8. Nicolle-Wagner Holding   Exception will further the statutory purpose in safeguarding the effectiveness of warnings... and in removing from regulatory scrutiny those substances which pose only an ‘insignificant risk’...”   Regulation upheld