California Proposition 65 notices filed for ∆-9 THC and β-myrcene
AHPA recently identified two 60-day Notices of Violation (NOVs) dated February 18, 2022 alleging California Proposition 65 (“Prop 65”) violations for failure to warn for exposure to ∆-9-tetrahydrocannabinol (“∆-9 THC”) and β-myrcene in hemp products. The NOVs list full spectrum hemp products for both topical and oral uses.

AHPA finds the filing of these NOVs to be concerning, given that the California Office of Environmental Health Hazard Assessment (OEHHA) announcement of the Prop 65 listing of β-myrcene clearly identifies this chemical as a natural constituent in numerous common plant species that are used as food. In addition, California Assembly Bill 45 (“AB-45”) – the legislation that legalizes hemp-derived cannabinoids like cannabidiol (CBD) in products like food and supplements – was recently signed into law, and ∆-9 THC is a natural-occurring constituent in hemp-derived CBD.

On February 7, 2014, OEHHA, the agency responsible for the administration of Prop 65 (the Safe Drinking Water and Toxic Enforcement Act of 1986) announced the intent to list β-myrcene as a chemical “known to the State of California to cause cancer.” The listing of β-myrcene became effective on March 27, 2015. Under Proposition 65 regulations, a person who causes an exposure to a listed carcinogen must provide a “clear and reasonable warning” within 12 months from the date of the chemical’s listing, unless otherwise exempted for the warning provisions.

The most relevant exemption in the case of β-myrcene is for chemicals that are “naturally occurring” food constituents. In its 2014 Notices of Intent to List β-myrcene, OEHHA specifically identifies this compound as naturally occurring in numerous plant species. The notice for β-myrcene indicates this chemical is a “natural constituent of food plants, such as hop, bay, verbena, lemongrass, citrus, pomegranate, and carrot, and of their juices and essential oils.” Such acknowledgements clearly allow for application of the naturally occurring exemption for any exposure associated with food products containing these chemicals.

As for ∆-9 THC, California Governor Gavin Newsom signed AB-45 into law on October 6, 2021, creating a legal pathway for the manufacturing and sale of hemp-based CBD in foods, beverages, cosmetics, and other products in the state. AB-45 sets standards for hemp used in finished hemp products, including that the total amount of ∆-9 THC cannot exceed 0.3%. This express limit acknowledges the presence of ∆-9 THC in hemp, thus should arguably allow for the naturally occurring exemption to be applicable for products legal under AB-45.

Private plaintiffs do not always respect certain provisions of the Proposition 65 regulations or OEHHA’s findings regarding certain listed chemicals. These filings represent aggressive private plaintiff actions in which companies must defend their products even in situations where a Proposition 65 warning is clearly not warranted. The defense of a lawsuit brought under California Proposition 65 is a complex process requiring special expertise.

It is strongly advised that anyone in receipt of a 60-day notice of violation contact an attorney who is knowledgeable about this law. AHPA maintains communications with several legal firms who specialize in environmental and consumer product law and can provide introductions to interested parties. AHPA has published several freely available guidance documents regarding the application of Proposition 65 to herbal products, both generally and to several specific herbal product categories such as teas and infusions and hemp products.
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