American Herbal Products Association (AHPA) President Michael McGuffin moderated a panel discussion titled "Proposition 65 Case Study: What We Can Learn From The Nutritional Supplement Industry," during the 2013 Proposition 65 Conference, April 8, at the City Club in San Francisco.
The annual conference focuses on the challenges companies have and continue to face doing business in California under the regulatory environment created by the passage of the state's Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986. AHPA was a sponsor of this event.
McGuffin's panel included California Deputy Attorney General Laura Zuckerman and attorneys Sarah Esmaili, Michael Freund, Mark Johnson, and Andrew Packard. The panelists focused on the impact of Proposition 65 cases on the supplement industry and what other businesses can learn from these case studies.
Almost 15 percent of all Proposition 65 "60-day notices" issued in past three years have been to dietary supplement companies. Most of these notices are the result of the alleged presence of lead at greater that 0.5 mcg per day, the allowed limit in foods and supplements sold in California without labeling indicating the presence of the lead.
The panel addressed various relevant issues related to Proposition 65, including the effectiveness of off-label warnings, views on exposure averaging, issues with the use of "naturally occurring" defense claims, and industry compliance.
McGuffin is a recognized expert on Proposition 65, and AHPA has been actively involved in issues related to the law for many years. From 2008 to 2010, McGuffin served on a California Office of Environmental Health Hazard Assessment Food Warning workgroup, formed to assist in the development of regulatory language intended to help businesses provide necessary warning for exposures to Proposition 65–listed chemicals in food.
Last year, he testified in a San Francisco Superior Court civil trial that ruled that products marketed as dietary supplements are "food" under Proposition 65's rule on exposures to "naturally occurring chemicals in a food."
He moderated a Proposition 65 panel during last year's Proposition 65 Conference.
Additionally, McGuffin, with co-author Trent Norris of Arnold & Porter LLP, AHPA's counsel for California Proposition 65, wrote Background on California Proposition 65: Issues Related to Heavy Metals and Herbal Products that provides invaluable information on the regulatory and liability implications of Proposition 65 on heavy metals that may be present in herbal products sold in the state of California. The document is free to AHPA members; nonmember pricing is $250.
For more information on the impact of California Proposition 65 on marketers of dietary supplements, the AHPA educational symposium, "Living with Proposition 65: Preventative Measures & Defending Against a 60-Day Notice," is available at the AHPA online bookstore on the association's website.
AHPA members are also encouraged to contact McGuffinto discuss any specific Proposition 65 issues.