TiO2 Prop 65 Dismissal Offers Lessons, Renews Hope For Industry
This article was originally published in The Tan Sheet
A win for industry in California Prop 65 litigation targeting titanium dioxide-containing cosmetics illustrates the importance of getting involved early in the listing process and challenging the factual basis for exposure claims. Morrison & Foerster attorney Michael Steel discusses the case and its takeaways.
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California’s Office of Environmental Health Hazard Assessment has proposed creation of a website to provide consumers with information on products containing ingredients subject to Proposition 65 reporting. The regulatory proposal would require firms to provide, at OEHHA’s request, data for the website regarding ingredient concentrations, exposure pathways and/or estimated exposure levels.
In an ongoing Prop 65 case targeting sun-protection and powder-cosmetics manufacturers, the Public Interest Alliance maintains it has demonstrated likely exposure to titanium dioxide particles that are airborne, unbound and of respirable size, as characterized by the Prop 65 listing. However, defendants argue the plaintiff must conduct air-monitor testing to prove that all products named in the suit contain particles of that form, with associated exposure risks.
Five marketers of cosmetic powders containing titanium dioxide particles have agreed to settle with NGO the Public Interest Alliance LLC in a case brought under California’s Proposition 65 regulation.