Is California’s Proposition 65 As Applied to Dietary Supplements in Conflict With Federal Law?

November 2012

This issue of Policy Forum (Volume 2, Number 21, November 14, 2012), Is California’s Proposition 65 as Applied to Dietary Supplements in Conflict with Federal Law?, explores whether private litigation actions under California’s “Safe Water and Toxic Enforcement Act of 1986” (Proposition 65) should be preempted when state requirements conflict with FDA.  Authors Nicolas Licato, General Counsel for Nexgen Pharma, Inc., and Michael Lanosa, law student at the University of Southern California, describe a savings clause that allows California-specific requirements in Proposition 65 to prevail, even when they conflict with federal requirements.  Licato and Lanosa conclude that FDA should adopt national standards for contamination of dietary supplements, and that any settlement agreements which hold manufacturers to a state-specific standard should be preempted by federal law.

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