California Proposition 65
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.
What is Proposition 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.
Because the warning requirement is unclear, the California Office of Health Hazard Assessment (OEHHA) has issued regulations providing a “safe harbor” warning – if a business complies with these safe harbor regulations, its warnings are deemed “clear and reasonable” and cannot be challenged in court a business is not required to comply with the safe harbor.
If it does not, a public or private enforcer could challenge the non-safe harbor warning being given, but would still have to prove that the warning is not clear and reasonable.
Proposed Proposition 65 Settlement
ASA, working with California-based attorneys, has negotiated a settlement of potential Proposition 65 claims that could be made based on California sales of soft plastic baits containing certain chemicals.
There is a hard deadline of April 17, 2019 to “opt-in” to the settlement.
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
The Proposition 65 regulations are complex and more proscriptive. Liability risks are significant. In addition to seeking legal counsel, ASA recommends that you take the following steps:
1. 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.
2. Read the Frequently Asked Questions (FAQs) created exclusively for ASA’s members by Norton Rose Fullbright, a globally-based law firm with extensive experience in Proposition 65.
Attorneys Familiar with Proposition 65
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
600 Massachusetts Avenue, NW, Washington, D.C. 20001
Carol R. Brophy
333 Bush Street 30th Floor San Francisco, CA 94104-2834
Paul S. Rosenlund
Duane Morris LLP
Spear Tower, One Market Plaza, Suite 2200, San Francisco, CA 94105-1127
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