California’s Proposition 65

Overview

Greenspoon Marder LLP’s Products Liability practice group provides comprehensive legal services for businesses navigating California’s Safe Drinking Water and Toxic Enforcement Act of 1986, also known as Proposition 65 (Prop 65).

California’s Proposition 65 requires businesses to provide a clear and reasonable warning before exposing anyone in California to a chemical the State has listed as causing cancer or reproductive harm. The list now includes more than 900 chemicals and continues to grow.

Enforcement is driven overwhelmingly by private enforcers rather than by the Attorney General or district attorneys. A small group of frequent filers aggressively serves 60-Day Notices of Violation on companies at every level of the chain of commerce. Because penalties can reach $2,500 per day per violation and a prevailing enforcer can recover its attorney’s fees, the cost of defending a matter frequently exceeds the exposure itself if it is not handled efficiently from the outset.

We have counseled and defended companies in Proposition 65 matters at every point in the chain of commerce, from some of the largest national retailers to distributors, importers, manufacturers, and intellectual property licensors.  Our work has spanned numerous industries, including apparel, footwear, fashion accessories, children’s products and toys, food and beverage, and hospitality.  That breadth matters because a retailer’s defenses, indemnity leverage, and warning obligations differ materially from those of the manufacturer that formulated the product or the licensor whose mark appears on it. We build each defense around the client’s actual position in the supply chain, and we coordinate testing and retain toxicology and exposure assessment experts where the science is worth fighting.

Proposition 65 exposure is a business problem before it is a legal one. Enforcement actions are frequently driven by the economics of fee recovery rather than by any demonstrated harm, and a defense strategy that ignores that reality tends to produce large legal bills and the same settlement the client could have reached months earlier. Where a client has defenses worth asserting, however, we assert them aggressively.