California Proposition 65

California’s Proposition 65, officially referred to as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses with 10 or more employees to provide a “clear and reasonable” warning before “knowingly and intentionally” exposing individuals in California to any Proposition 65 listed chemical either through an environmental exposure, occupational exposure, or consumer product exposure to a product or activity.

Proposition 65 mandates that the State of California publish a list of chemicals known to cause cancer, birth defects or other reproductive harm. This list, which contains almost 1000 chemicals, must be updated at least once a year. Given the significant number of listed chemicals, Proposition 65 violations are quite common. Steep penalties of $2,500 per day for each violation can be imposed against businesses for each non-compliant product sold. 

With a cost-effective approach, our attorneys assist manufacturers, importers, distributors, and retailers on all aspects of Proposition 65, including emerging requirements and an ever-expanding list of chemicals subject to Proposition 65, regulatory compliance counseling, and responding to enforcement actions through the establishment of detailed and thorough defense through a withdrawal of a notice, settlement or trial.

We have represented clients that range from international clients, Fortune 500 companies to small, family-owned businesses and trade organizations that all have a stake in the dynamic and large California marketplace. Whether the client is large or small, whether the best course is to secure an early settlement or to defend the client and its product through trial, Lewis Brisbois works in close collaboration with our clients from the outset to provide a detailed defense strategy driven by the facts, the client's needs, and their economic considerations. We have a breadth of experience representing all businesses, large and small, in connection with Proposition 65.

Whether a client needs regulatory compliance advice to avoid subsequent Proposition 65 enforcement actions or to ensure best practices to avoid enforcement actions altogether, we have extensive experience in serving our clients’ needs. In the unfortunate event a business is the recipient of a Proposition 65 Notice of Violation or formal lawsuit, Lewis Brisbois has extensive experience in handling the defense of these matters and assisting our clients reach its desired and optimal outcome. 

Our full-service Proposition 65 practice includes:

  • Regulatory compliance counseling, including best labeling practices under the “Clear and Reasonable Warnings” requirements of Proposition 65.
  • Counseling clients regarding responding to a 60 Day Notice of Violation/ Notice of Intent to Sue;
  • Pre-litigation settlement efforts and strategy;
  • Proposition 65 litigation;
  • Proposition 65 settlements (both in and out of court) of enforcement actions brought against all businesses in the chain of commerce
  • Insurance coverage assessments; and
  • Review of supplier/manufacturer/importer or retailer agreements to ensure that the client is properly protected in any enforcement action.

Lewis Brisbois works closely with each client to address its needs in each aspect of California’s Proposition 65.

Chairs

  • Garth Ward (Partner) - Garth.Ward@lewisbrisbois.com, 619.699.4952