California Proposition 65

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The OEHHA states that Proposition 65 (Prop 65), known as the Safe Drinking Water and Toxic Enforcement Act of 1986, protects the state’s drinking water sources from being contaminated with chemicals that cause cancer or reproductive defects. It requires businesses to reveal any such exposure to the public. Products that contain a relatively minute, but detectable, level of any one of over 800 substances that is maintained by the state of California can trigger the duty to warn aspect of the Prop 65. When businesses fail to do so, penalties of up to $2,500 per day, per violation, could result.

Changes in California’s Prop 65 have made ensuring compliance with the warning requirements more detailed and complicated. Foley attorneys anticipate that private citizen suit enforcement actions under the revised regulations will start in mid-2019.

Foley’s experienced team of attorneys, from our California offices and other locations nationwide, can assist you on a full range of services related to Prop 65, from complying with regulation requirements to defending against claims and new listings. Foley’s Prop 65 services cover its effect on multiple industries including food & beverage, environmental, automotive, retail, telecommunications, and manufacturing.

Our dedicated environmental lawyers keep pace with the Prop 65 listing process, ensuring you will be up to date on new listings and regulation adjustments, and whether they impact your business. We can provide a blue print to maintain your business objectives with minimal disruption.

We have the knowledge, contacts, and ability to work closely with toxicologists and laboratories in order to test products for violations of Proposition 65, as well as prepare and respond to notices of violation and, when necessary, litigate a case.

When it comes to resolving claims, Foley’s attorneys assist in a cost-effective, expeditious manner. Given the steep penalties and unique “bounty hunter” private enforcement aspect of the law—who are entitled to attorney’s fees, usually the largest part of any settlement—it is critical to have experienced litigation counsel involved from the receipt of a 60-Day Notice until its final resolution. With our extensive negotiating skills and Prop 65 experience, Foley has been successful at reaching favorable settlements for our clients in matters involving complex issues with Prop 65.

Representative Prop 65 Experience

  • Responding to and settling 60-day notice letters under Prop 65
  • Compliance advice on the revisions to Prop 65 that went into effect in August 2018
  • A failure-to-warn claim for minute amounts of lead in the internal wiring of household garbage disposals
  • Advice for manufacturers of household appliances on emissions and wiring warnings
  • Representation as compliance counsel for a variety of manufacturers and distributors of candles, hand tools, toys, batteries, and household, consumer, and marine products
  • Case evaluations for salmon fisheries and producers
  • Defense of claims against various industry sectors, including asphalt paving contractors, clothing manufacturers, and national discount retailers
  • Identification of potential consumer, employee, and environmental exposures to carcinogens and mutagens
  • Development of warning strategies, safe-use determinations, and supplier certifications
  • A failure to warn claim for minute amounts of arsenic in water filters
  • Successful settlement and dismissal of Prop 65 claims involving diesel exhaust
  • Counsel to a leading motor vehicle manufacturer regarding federal and state labeling requirements applicable to hazardous substances in consumer products, including requirements under the Federal Hazardous Substances Act, the Consumer Product Safety Act, the Uniform Packaging and Labeling Regulation and Prop 65