Authored by Kevin Abbott
In the course of representing our business clients, far too often we see well-meaning laws turned into a method for attorneys to wring money out of profitable enterprises on flimsy rationales. We have seen this in employment claims, ADA claims, and now most recently in claims that clients have violated California’s Safe Drinking Water and Toxic Enforcement Act, commonly known as Proposition 65.
Proposition 65 has created a litigation industry much like other California private attorney general enforcement statutes such as PAGA. Private law firms can file lawsuits under Proposition 65 requiring product recalls, labelled warnings, and payment of civil penalties. Of course, the civil penalty aspect is where these law firms and their cottage industry clients get paid.
Proposition 65 requires manufacturers, retailers, property owners and other employers to warn consumers, employees and invitees if their products, processes or facilities expose individuals to certain levels of chemicals which the state of California deems to cause cancer or reproductive issues. California maintains a list of chemicals subject to enforcement under Proposition 65. This list is currently at approximately 800 substances. Additionally, a section in the law prohibits discharge of the listed chemicals into water bodies.
Products that contain a relatively minute, but detectable, level of any of the 800 “listed” substances can trigger the Proposition 65 duty to warn. The penalty for failure to warn is up to $2,500 per day per violation.
Proposition 65 claims start by a law firm sending a 60-day “notice of violation” before filing a lawsuit. In our experience, many of these Proposition 65 notices, while threatening, are based on falsehoods. For example, the notice may assert that a certain product causes exposure to a harmful chemical, when in fact that chemical is non-existent on the product.
From the moment a Proposition 65 60-day Notice of Intent to sue is served, we work with our clients to implement a strategy to eliminate or substantially lessen the impact of the claim. Target defendants in Proposition 65 claims include manufacturers, suppliers, distributors, and retailers.
A first course of action in making sure your company does not become a victim to a Proposition 65 claim is to review the list of chemicals “known to” California to cause cancer or reproductive issues. This list changes with time and putting in an annual compliance review is important. Testing products for the chemicals should be a part of the review process. Our firm can assist your company is organizing a compliance review protocol as well as handling any claims or litigation based on a Proposition 65 enforcement action.
