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Court Grants Preliminary Injunction Halting Lawsuits to Enforce Prop 65 Warning for TiO2

Makeup brushes

On June 11, 2024, the U.S. District Court in the Eastern District of California granted a preliminary injunction enjoining the Attorney General and “all those acting in privity or concert,” including private Proposition 65 (“Prop. 65”) citizen enforcers, from filing or prosecuting new Prop. 65 lawsuits enforcing the cancer warning requirement for listed titanium dioxide (TiO2) in cosmetics and personal care products. The injunction was issued in a Prop. 65 Ti02 case filed by the Personal Care Products Council (PCPC) against the California Attorney General, Rob Bonta.

In its motion, PCPC alleged that Prop. 65's warning requirement, as applied to TiO2 in cosmetics and personal care products, violates the First Amendment of the Constitution. The Court agreed, concluding that Prop. 65’s warning requirements for cancer as applied to Listed Titanium Dioxide (i.e., titanium dioxide that consists of airborne, unbound particles of respirable size) in cosmetic and personal care products are not purely factual. As a result, the court found that PCPC is likely to prevail on its merits of its First Amendment claim. In addition, the Court agreed with the Plaintiff that it would suffer irreparable harm in the absence of a preliminary injunction. The underlying PCPC Ti02 litigation will continue while this injunction remains in place.

In related news, on June 24, the California Office of Environmental Health Hazard Assessment (OEHHA) extended the deadline for public comments on its proposal to adopt a Proposition 65 No Significant Risk Level (NSRL) for titanium dioxide (airborne, unbound particles of respirable size) for Titanium Dioxide (TiO2). Comments are due by July 1, 2024.