Prop 65

California’s Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986, is an unwieldy and costly burden on California businesses. Significant dollars and time are being invested testing products, developing alternatives, reducing discharges, providing warnings and defending actions to meet the requirements of a law steeped in good intentions and controversy.

Key Contacts

Melissa A. Jones Partner Sacramento, CA
Overview

Prop 65 requires manufacturers, retailers, property owners and employers to warn consumers, employees and invitees if their products, processes or facilities expose individuals to certain levels of chemicals “known to the state of California” to cause cancer or reproductive issues. A section in the law also prohibits discharge of those chemicals into water bodies.

Products that contain a relatively minute, but detectable, level of any one of over 800 “listed” substances can trigger the Prop 65 duty to warn. The penalty for failure to warn? Up to $2,500 per day per violation. With thousands of products affected by Prop 65, the law’s unique “bounty hunter” provision has fostered a cottage industry of citizen plaintiffs launching suits in pursuit of a piece of penalty payments.

We help companies comply with Prop 65 requirements, fight listing of new listed substances and defend against claims of non-compliance, whether from the Attorney General’s office, district or city attorneys, or private parties/plaintiffs.

We’ve defended Prop 65 actions involving:

  • Lead
  • Phthalates (BBP, DBP, DIDP, DINP, DnHP and DEHP)
  • Cadmium
  • Mercury
  • 4-MEI
  • Crystalline silica
  • Acrylamide
  • Arsenic
  • Tris phosphate (TDCPP, TCEP)
  • Diethanolamine
  • Cocomide-DEA
  • Carbon monoxide
  • Formaldehyde

Compliance

We actively monitor the Prop 65 listing process administered by the Office of Environmental Health Hazard Assessment. When new chemicals are considered for listing, we inform you about how and when to take action. We also advise on consumer product regulations related to Prop 65, such as the Consumer Product Safety Improvement Act, the Consumer Product Safety Commission’s Reasonable Testing Program, EU Reach and the Federal Insecticide, Fungicide and Rodenticide Act, among others. Our philosophy is to take a proactive approach to planning and implementing compliance programs. In addition to the chemicals listed above, we’ve provided compliance advice regarding bisphenol A (BPA), toluene, vinyl bromide and styrene.

Defense and Litigation

We advocate for your interests from the moment a Prop 65 60-day Notice of Intent to Sue is served and immediately activate a strategy to avoid litigation. We’ve defended manufacturers, suppliers, distributors and retailers in Prop 65 actions involving a wide spectrum of products—including apparel and footwear, hand tools, exercise equipment, automotive parts, nutritional and dietary supplements, furniture, eyewear, and personal care products. Given our national leadership in environmental law, our team includes attorneys who work well with chemistry and scientist consultants to capably analyze, evaluate and defend your interests regarding Prop 65 issues.

Team
Insights & Presentations
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