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Proposition 65

Alston & Bird has advised clients on California’s Proposition 65 since the initiative was first adopted by voters in 1986.

Proposition 65 prohibits businesses from knowingly and intentionally exposing persons without warning in the State of California to chemicals listed by the State as being either carcinogens or reproductive toxins, and prohibits the discharge of such chemicals into a source of drinking water.

Alston & Bird works closely with clients to examine the potential for air, land and water discharges — as well as product exposure — to help determine whether there is a Proposition 65 warning obligation. We work as a team with the client’s professional staff as well as environmental consultants who identify exposure scenarios and assess emissions using the unique modeling assumptions provided in Proposition 65 and the implementing regulations. If a warning is necessary, we provide guidance on how to develop an effective and legally sufficient Proposition 65 warning, including both the text of the warning and the method of delivery. In doing so, we keep in mind the toxic tort and other liability concerns of our clients. Our Proposition 65 practice consists of compliance counseling as well as litigation/enforcement actions.

Compliance Counseling

In order for a business to protect itself against being subject to liability for chemical exposures from the use of our clients’ products that are sold in California, from on-premise exposures to customers and employees, or off-premises exposures to the members of the public, audits tailored specifically to Proposition 65 compliance are often undertaken. Alston & Bird attorneys are frequently asked to conduct Proposition 65-specific audits in order to ensure such compliance. Our lawyers typically conduct these audits independently, or in a supervisory capacity with an environmental consultant.

Litigation & Enforcement Actions

Proposition 65 is enforced through litigation. Thus, it is necessary to understand the trends in the enforcement community that may result in potential liability to a particular California business. Because of our experience in this field, Alston & Bird attorneys know and appreciate recent judicial developments and enforcement trends that are driven by policy decisions that become evident through enforcement actions undertaken or contemplated by the attorney general and certain environmental groups. Alston & Bird attorneys bring this knowledge to bear on designing a warning system for a particular business during the audit. Our experience also extends to successful Proposition 65 trial experience. Our Proposition 65 knowledge, together with the firm’s extensive litigation experience, enables us to successfully respond to a variety of government agency and private party enforcement actions on our clients’ behalf.

Proposition 65

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