Prop 65 Preempted By TSCA Rewrite? Don’t Count On It

Business groups generally welcomed the rewrite of the Toxic Substances Control Act (TSCA), recently signed into law by President Obama, even though it strengthened the EPA’s hand vis a vis the regulation of chemicals. The reason is that it included a number of preemption provisions and so should make dealing with state-by-state regulation less of a burden for companies. But as this client alert from Morrison & Foerster points out, California’s legislators, notably retiring Senator Barbara Boxer, “took pains to ensure that Proposition 65, a law California’s voters adopted in a 1986 ballot initiative, remained fully protected from TSCA preemption.” Still, even with that protection, it’s possible the risk determinations as defined in the new TSCA could become part of a Prop 65 defense, depending on how courts rule in some current and future cases.