Overview of the Issue

Approved by voters in 1986, this law was intended to address public concerns over chemicals and compounds in the environment. This law became commonly known as Prop 65.

Prop 65 requires businesses to provide a “clear and reasonable” warning to California’s consumers before exposing them to chemicals known to the state of California to cause cancer or reproductive harm, unless the business can demonstrate that the exposure is below certain thresholds.

This unclear warning requirement led the California Office of Health Hazard Assessment (OEHHA) to issue regulations providing a safe harbor warning. While not required, businesses are inclined to comply with the safe harbor warnings to avoid Prop 65 enforcement actions.

A public or private enforcer could challenge a non-safe harbor warning and argue that the warning is not clear and reasonable. By compiling, businesses ensure that warnings are deemed “clear and reasonable” and cannot be challenged in court.

California Proposition 65 New Labeling Requirements

California revised its requirements for effective “safe harbor” warning labels required for protection against Proposition 65 lawsuits. The changes to Proposition 65 regulations add specificity to the current regulations.

These new labeling requirements applied to all products manufactured on or after August 30, 2018.

While new warnings were not required on products manufactured before August 30, 2018, bounty hunting attorneys will likely begin raising disputes after that date. ASA strongly recommends adopting new warning language as soon as practicable to avoid this potential aggravation and issues of proof regarding the date of manufacture.

The new warnings for carcinogens and reproductive toxicants now require the naming of at least one or more chemicals on California’s list.

The new warnings require warning/caution symbols and a link to the California website www.P65Warnings.ca.gov.

ASA encourages its members to consult with your legal counsel and determine the best application of the new warnings to protect your company from predatory “bounty hunter” lawsuits in California. Below is a list of attorneys familiar with Prop 65.

Information to Help You Manage the Proposition 65 Regulations

These attorneys are familiar with and have experience with Proposition 65 litigation. This is not a definitive list. All ASA’s members are free to choose an attorney that best fits their business needs.

Allison D. Foley
‎Venable LLP‎
600 Massachusetts Avenue, NW, Washington, D.C. 20001
Phone: 202.344.4416‎
Mobile: 845.797.6635‎
Email: ADFoley@Venable.com

Carol R. Brophy
Sedgwick LLP
333 Bush Street 30th Floor San Francisco, CA 94104-2834
Phone: 415-627-3466
Email: carol.brophy@sedgwicklaw.com

Paul S. Rosenlund
Duane Morris LLP
Spear Tower, One Market Plaza, Suite 2200, San Francisco, CA 94105-1127
Phone: 415-957-3178
Fax: 415-520-5479
Email: PSRosenlund@duanemorris.com

Jeffrey Margulies
Partner-in-Charge, Los Angeles
Norton Rose Fulbright US LLP
555 South Flower Street, Forty-First Floor, Los Angeles, California 90071
555 California Street, Suite 3300, San Francisco, California 94104
Phone: 213-892-9286
Fax: 213-892-9494
Mobile: 310-995-6218
Email: jeff.margulies@nortonrosefulbright.com

Information to Help You Manage the Proposition 65 Regulations

The Proposition 65 regulations are complex and more prescriptive. Liability risks are significant. In addition to seeking legal counsel, ASA recommends that you review the Proposition 65 Guidelines which contains the California Proposition 65 requirements. Determine which of these warnings, e.g. “on product warnings,” pertain to your products.

For more information, contact ASA Vice President of Government Affairs Mike Leonard.

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