Stoel Rives attorney Melissa Jones discussed in FoodProcessing.com the application of California's Proposition 65 ("Prop 65") – the Safe Drinking Water and Toxic Enforcement Act of 1986 – to food and beverage manufacturers.
Jones describes why Prop 65 is so problematic for companies. First, the law lists more than 850 chemicals the state has determined cause cancer or reproductive harm, with most lacking any safe harbor content levels. Second, Prop 65 empowers private litigants to enforce its terms, even in the absence of any showing that consumers have been harmed or exposed to any material risk. Third, the warning requirement makes it likely consumers will be alarmed, particularly in the case of food and beverage products. Finally, the law is very expensive for companies to defend, since a plaintiff need only demonstrate that a product sold without a warning contains one of the chemicals on the state's list in order to shift the burden of proof regarding safety to the defendant company.
Accordingly, Jones urges companies to take concrete action to minimize the risk of Prop 65 lawsuits. She recommends companies carefully track Prop 65 trends and confirm whether their products contain chemicals on the state's list.
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"Any food and beverage manufacturer who sells products in California can be sued," was posted by FoodProcessing.com, April 9, 2012.