Resources

This is from OEHHA’s website; the colored comments are ours.

On July 30, 2013, the Office of Environmental Health Hazard Assessment (OEHHA) will hold a public pre-regulatory workshop for the purpose of gathering input from interested parties on the content of a regulation that would address Proposition 65 warnings. Such a regulation, if formally proposed and adopted, would either supplement or replace existing OEHHA regulations governing Proposition 65 warnings and conform to any statutory changes if enacted.

The workshop will take place from 10 am to 3:30 pm in the Coastal Hearing Room at the Cal/EPA Headquarters Building, 1001 I Street, Sacramento, CA. The workshop will be webcast. The URL for the webcast (not active until the day and time of the meeting) is: http://calepa.ca.gov/Broadcast/.

Potential Regulatory Action OEHHA is considering a rulemaking that would provide for more informative and meaningful warnings to individuals concerning exposures to carcinogens and reproductive toxicants. The regulation would offer a variety of options for businesses that are required to provide these warnings, and would provide businesses with greater certainty that their warnings comply with Proposition 65.

At this time, OEHHA believes the regulation should include the following:

1. A requirement that a warning inform an individual that he or she will be exposed to a listed chemical.
2. The minimum information that must be included in all warnings, including the health effect (cancer, male reproductive toxicity, female reproductive toxicity, developmental toxicity) for which the chemical(s) involved in the exposure was listed; information on how a person will be exposed; and, where applicable, simple information (such as washing hands) on how to avoid or reduce an exposure.

This will make warnings more difficult and present additional avenues for litigation, particularly if there are more than one Prop 65 chemical present and more than one avenue of ingestion

1. Approved warning methods and content for use by product manufacturers and retailers regarding exposures to listed chemicals from consumer products, including products sold at retail establishments and products sold via the internet. These approved methods may include alternatives to on-product warning.

This may be adequate although previous attempts to make this change have been unsecessful, as many parties have asserted that warnings need to be at the point of sale.

Approved warning methods and content for use by manufacturers and retailers regarding exposures to listed chemicals in foods, including foods sold at retail establishments and food products sold via the internet. These approved methods may include alternatives to on-product warnings.

Same as above, there is a prejudice by the AG for having the warning at the point of sale, in the store. It would be useful to have specific standards set to ease compliance questions.

1. Approved warning methods and content for environmental exposures, including exposures an individual may experience when entering or spending time in an area where listed chemicals are present. OEHHA intends to provide specific warning language and methods for some common environmental scenarios, such as parking structures, food courts, hotels, apartments and other businesses, to provide greater clarity and certainty where appropriate.

Makes Sense

1. Requirements and approved methods for providing additional contextual information to persons concerning exposures to listed chemicals. Such information would allow individuals to learn more about some or all of the specific chemicals involved in the exposure, and the applicability of other state and federal laws to these exposures. This information would not have to be provided prior to the exposure, but instead would have to be available to the public on a web site or other generally accessible location.

Makes sense, although it will cause manufactures and retailers to engage in additional efforts prior to sale.

1. Reasonable transition times for businesses to come into compliance with this regulation and recognition of existing warnings that are included in court-approved settlements.

We try to draft our settlement agreements to include this time.

On July 12, 2013 the FDA announced a proposed action level of 10 ppb (parts per billion) for arsenic in apple juice. The 10 ppb is the same as EPA arsenic in drinking water standards.

“The FDA is committed to ensuring the safety of the American food supply and to doing what is necessary to protect public health. “We have been studying this issue comprehensively, and based on the agency’s data and analytical work, the FDA is confident in the overall safety of apple juice for children and adults.” “While the levels of arsenic in apple juice are very low, the FDA is proposing an action level to help prevent public exposure to the occasional lots of apple juice with arsenic levels above those permitted in drinking water,” said Michael R. Taylor, the FDA’s deputy Commissioner for Foods.

The FDA is establishing this threshold to provide guidance to industry however the agency may take the action level into account when considering an enforcement action, if it finds a food product exceeds the threshold.

The FDA indicated that it has been monitoring the presence of arsenic in apple juice for the last 20 years and has found that most samples contain levels of arsenic that are low. Last year the FDA released findings from an analysis of 94 samples of arsenic in apple juice. 95 percent of the apple juice samples tested were below 10 ppb total arsenic; 100 percent of the samples were below 10 ppb for inorganic arsenic, the carcinogenic form of arsenic. The assessment is based on lifetime exposure. Inorganic arsenic may be found in foods because it is present in the environment, both as a naturally occurring mineral and because of activity such as past use of certain pesticides.

Of interest for Prop 65 practicioners, will be how this number impacts Prop 65 levels. Currently there is a NSRL (No Significant Risk Level ) for inorganic arsenic of 10 micrograms per day. The NSRL for Proposition 65 is the intake associated with a lifetime risk of one in 100,000 for cancer.

The agency will accept public comments proposed action level for 60 days.

In my two previous posts, I discussed the value of comprehensive estate planning even if you have a small estate or you want everything to go to your spouse. In this last installment, I will address the most common reason I hear from clients who say they don’t need an estate plan, which is, “I don’t need an estate plan because I have everything in beneficiary designation accounts.”

People often try to create a “do-it-yourself” estate plan by creating beneficiary designations on all of their assets. This is typically done by titling assets with another person “with right of survivorship,” holding assets jointly, or creating “payable on death” (POD) or “transfer on death” (TOD) accounts. I caution against using this approach for several reasons.

In California, you can have $150,000 in total assets (subject to a few exclusions) outside of a trust or without beneficiary designations without triggering a probate. Additionally, the threshold amount for transferring real property without a probate in California is $50,000. With TOD/POD accounts, if the designated beneficiary is deceased at your death and if no successor is named, the account goes back to your estate and counts toward the $150,000. The same is true if you are the surviving owner of property that had been owned “with right of survivorship,” which often happens with real property. If enough beneficiary designations fail or were never created, it is possible that a probate will be required.

Second, without a will, if any asset lacks a beneficiary or the beneficiary you have named does not survive you, that asset will be distributed according to the intestacy system. With an estate plan in place, you can name your “back-up” beneficiaries for any of these assets and avoid this default option.

Finally, a common problem is that people forget to change their beneficiary designations as time goes on, particularly if they have many accounts. It is not uncommon to have ex-spouses or estranged relatives named as beneficiaries because a person either forgot who the named beneficiary was or forgot about the account entirely. Beneficiary designation accounts require consistent monitoring to make sure that you have (a) named the correct beneficiaries and (b) the financial institution has processed your beneficiary designation forms correctly.

For these reasons, even the simplest estate plan is a worthwhile investment at any age. A proper plan will make provisions for managing your affairs if you become incapacitated and provide for an orderly distribution of assets upon your death, and it will fully reflect your wishes, rather than the judgment of a court or the California Probate Code.