California’s Proposition 65
(The Safe Drinking Water and Toxic Enforcement Act of 1986)
Gordon & Rees has provided counsel to clients in hundreds of Proposition 65 matters in over the three decades since its inception. Our attorneys' focus includes both compliance and enforcement defense pertaining to a wide variety of products and industries. Proposition 65 pertains to chemicals identified by the State of California as known to cause cancer and/or birth defects or other reproductive harm (known as listed-chemicals). Proposition 65 prohibits any company with 10 or more employees from knowingly and intentionally exposing the public to any listed-chemical without giving a “clear and reasonable warning.” The statute is enforced by both public prosecutors (typically the California Attorney General’s office) and private party enforcers (commonly known as “bounty hunters”) who seek injunctive relief, penalties and attorneys’ fees against companies that are out of compliance. Our attorneys have assisted companies of all sizes, from Fortune 500 companies to those just meeting the 10 employee threshold for Proposition 65 liability.
The following is an example of the industries and types of products for which we have provided Proposition 65 services:
Food & Beverages
- Dietary Supplements
- Bean products
- Food additives
- Cookware and glassware
- Backpacks and carrying cases
- Cleaning products
- Pool supplies
- Children’s products
- Consumer Electronics
- Garden equipment
- Automotive parts
- Clothes and shoes
- Cosmetics and Jewelry
- Sports equipment
- Paints, Inks, and removal products
- Fire retardants
- Paints, varnishes and adhesives
Hardware and Construction Products
- Plumbing fixtures
- Cement aggregate
- Diesel exhaust
- Coal and Petroleum coke dust
- Tobacco smoke
- Carbon Monoxide
Scientific Know How
Many of our attorneys bring their academic science backgrounds and years of experience handling scientific and technical issues to work for their clients in regards to Proposition 65 concerns. Our attorneys understand the highly technical aspects of human health risk and exposure assessment, which enables us to guide our clients in using consultants and expert witnesses wisely and efficiently.
Our attorneys regularly assist manufacturers, distributors, and retailers to develop compliance strategies that will protect them from Proposition 65 enforcement actions, while paying close attention to accomplishing this goal within a reasonable economic approach. In addition to advising clients throughout the supply chain for products exposures, we also counsel clients with concerns regarding environmental and occupational exposures subject to Proposition 65. We prepare specific "clear and reasonable" warnings, along with specific directions to ensure the method of transmission is compliant. We also regularly conduct scientific analyses with the assistance of qualified laboratories to determine when the presence of any listed-chemicals in particular products are safely within the safe harbor thresholds, both to alleviate the need for a Proposition 65 warning and to fortify the safe harbor affirmative defense, in the event of any future Proposition 65 enforcement action.
A boutique industry of plaintiff Proposition 65 attorneys regularly serve Proposition 65 notices and frequently follow up with lawsuits seeking to extract "bounty hunter" fees and impose product reformulation requirements. We always work with our clients to develop the most cost-effective means of resolving these actions. Defense of these actions ranges from often-times pre-litigation nuisance settlements, all the way to the defense of the matter through trial.
Our trial experience in Proposition 65 actions includes the defense of a three-week trial in a Proposition 65 action prosecuted by one of the largest plaintiff law firms in California concerning environmental exposures. We have also defended Proposition 65 enforcement actions against the California Attorney General, and nearly all of the principal private plaintiffs firms and their lawyers.
For more information about how Gordon & Rees can help with your Prop 65 and other "toxic tort" claims, please contact Michael Pietrykowski or Brian Ledger.
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