e-bulletin re Prop 65 case: Chemical Toxin Working Group v. The Pictsweet Company, Los Angeles Superior Court Case No. 24STCV08902

In July 2026, following trial, Judge Lawrence Riff of the Los Angeles County Superior Court issued a ruling in this Prop 65 case that could have a significant impact upon existing and future Prop 65 cases. Plaintiff contended Pictsweet’s frozen spinach product contained cadmium and thus required a Prop 65 warning. During the growing process, spinach may uptake cadmium from the soil. Cadmium was listed under Prop 65 in 1997, following extensive analysis of the chemical by the California Office of Environmental Health Hazard Assessment (OEHHA), the agency charged with implementing and regulating Prop 65 and analyzing chemicals for possible listing. Pictsweet contended that the level of exposure (LOE) to cadmium in the product is below the Prop 65 safe harbor level (4.1 µg/day), established in 2001, and therefore the product is exempt from the warning requirement.

The LOE is determined by multiplying the level in question (LQ), which is the concentration of the listed chemical in the product, by the reasonably anticipated rate of exposure (RARE) to the product. Stated as a formula: LOE = LQ x RARE. The real dispute at trial of Pictsweet’s safe harbor defense was about how to determine the RARE. 27 CCR section 25821(b), the regulation governing how to determine the RARE, states:

The reasonably anticipated rate of exposure shall be based on the pattern and duration of exposure that is relevant to the reproductive effect which provided the basis for the determination that a chemical is known to the state to cause reproductive toxicity. (For example, an exposure of short duration is appropriate for a teratogenic chemical, whereas a chronic or protracted exposure is appropriate for one that retards fetal growth.)

(27 CCR §25821(b).)

Plaintiff’s position was that the relevant “pattern and duration of exposure” upon which the listing of cadmium was based should be determined by modern science – that is, scientific studies about cadmium exposure and toxicity that post-date OEHHA’s analysis of cadmium that led to the chemical being listed under Prop 65. Plaintiff claimed that modern science demonstrates that cadmium is a teratogen and, thus, the RARE should be determined over a short period of time (e.g., a day or two) or even a single eating occasion. By contrast, Pictsweet’s position was that, based on the plain language of the regulation, the framework of Prop 65, and separation of powers principles, it is not the role of the court to consider post-listing science. Rather, the court must determine the relevant pattern and duration of exposure from the administrative record that led to chemical being listed. In the case of cadmium, that is OEHHA’s analysis of cadmium and consideration of that analysis by the Developmental and Reproductive Toxicant Identification Committee (DARTIC), the committee of the state’s experts charged with recommending chemicals to be listed under Prop 65. Pictsweet contended that the administrative record shows that, with regard to oral (dietary) exposure, cadmium was listed based on non-teratogenic effects from protracted or chronic exposure to cadmium; cadmium was not listed based on teratogenic effects.

Judge Riff agreed with Pictsweet, excluded Plaintiff’s post-listing scientific evidence and ruled that the pattern and duration of exposure relevant to the reproductive effects for which cadmium was listed under Prop 65 is protracted or chronic exposure. More specifically, that pattern and duration of exposure is 60+ days. As a result, the LOE to cadmium in the Pictsweet product, based on Plaintiff’s own testing, was below the safe harbor level. The court entered judgment for Pictsweet and the other defendants.

The case is now on appeal. The decision is significant because most Prop 65 enforcers, with regard to cadmium and other listed chemicals, claim that modern science shows the LOE should be based on short term exposure. However, they will not be able to use that evidence under the trial court’s decision in the Pictsweet case. The ruling could have a significant chilling effect on Prop 65 private enforcement actions.