Proposition 65

What is Proposition 65?

California’s Proposition 65 (the Safe Drinking Water and Toxic Enforcement Act of 1986, or “Prop 65”) was passed by referendum and intended by its authors to protect California citizens and the State’s drinking water sources from chemicals known to cause cancer, birth defects or other reproductive harm, and to inform citizens about exposures to such chemicals.

How Does Prop 65 Affect Business Owners?

Prop 65 requires manufacturers, retailers, restaurants and serving facilities, property owners, and employers to provide warnings to consumers, employees, and invitees if their products, processes, or facilities expose individuals to certain levels of chemicals that are “known to the state of California” to cause cancer or reproductive issues.

The presence of a sufficient amount of a listed substance may trigger the duty under Prop 65 to provide adequate warnings, with failures to warn subject to fines of up to $2,500 per day, per violation. Currently, there are over 800 chemicals on the list, with more to come. The required warnings may involve exposures to products or environmental or occupational exposures such as the exposure in restaurants to alcohols or certain chemicals generated by cooking, including certain meat, potatoes, and even coffee products.

Prop 65 contains a “bounty hunter” provision that makes it an attractive source of income for a number of plaintiff’s attorneys, and makes manufacturers, retailers, and business operators ta64rgets for sixty-day notices, the required precursor to a lawsuit.

How Can Weintraub Tobin Help You?

Weintraub Tobin attorneys have assisted clients on both the compliance side and in litigation related to Prop 65. We have represented several hardware and plumbing manufacturers, large retail hardware retailers, and furniture manufacturers as well as shoe and toy manufacturers. We have also handled cases involving food products, including coffee products, sports drinks and represented restaurants with regard to environmental exposures.

Prop 65 Compliance

We assist companies with Prop 65 compliance and provide compliance advice pertaining to related consumer product regulations such as the Consumer Product Safety Improvement Act, Rigid Plastic Packaging Act, and the Federal Insecticide, Rodenticide and Fungicide Act, among others. We provide practical advice to help companies take a proactive approach to consumer product safety.

Prop 65 Defense and Litigation

We help clients beginning with the receipt of the litigation precursor 60-Day Notice through litigation and/or settlement. We pride ourselves in managing these cases efficiently and in helping our clients resolve these issues as expeditiously as possible.

Weintraub Tobin lawyers have defended manufacturers, suppliers, distributors, and retailers in Prop 65 actions involving a wide spectrum of products, as well as environmental exposures. We have experience with many of the more prevalent Prop 65 chemicals, including lead, phthalates (DBP, DEHP, BBP), cadmium, arsenic, 1,4 dioxane, formaldehyde, ethyl benzene, toluene and others, MEI and tris.

Representative Clients:

Shoe Manufacturer – We assisted client in determining the best way to provide a warning to its customers.

Retail Hardware – Handled numerous cases for several large hardware retailers on products ranging from plumbing to traditional hardware to propane torches and combination locks.

Food Manufacturer – Represented a company with respect to MEI in flavorings and alleged lead content in sports drinks and juices.

Furniture Manufacturer – Represented a company with respect to fire retardant chemicals in its foam padding.

Food Facilities – Represented several facilities with respect to environmental exposures.

Tool Manufacturer – Assisted large tool manufacturer in cataloging and indemnifying potential Prop 65 levels.

Sports Equipment – Assisted sports equipment manufacturer with respect to location and content of warning.

In addition to consumer product laws and regulations, the firm also has experienced attorneys that handle a myriad of other similar consumer claims, such as those under the Unfair Business Practices Act, the Americans with Disabilities Act, gift card claims, and false advertising and labeling claims.

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