Litigation & Enforcement Actions
Proposition 65 is enforced through litigation, so a keen understanding of the trends in the enforcement community that may result in potential liability to a particular business is essential to a successful defense of a Proposition 65 lawsuit. Because of our significant 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 California attorney general and environmental groups. This knowledge and appreciation helps us provide invaluable counsel to our clients regarding the best strategies for defending Proposition 65 litigation, and we have a successful track record in these cases..
Proposition 65 Compliance Counseling
Alston & Bird works closely with clients to examine the potential for air, land and water discharges and determine whether there is a Proposition 65 warning obligation. We work as a team with our clients’ professional staff and environmental consultants to identify exposure scenarios and assess emissions using the unique modeling assumptions provided in Proposition 65 and its implementing regulations. If a Proposition 65 warning is necessary, our attorneys provide guidance on the development of an effective and legally sufficient warning, including both the text of the warning and the method of delivery—always keeping in mind the toxic tort and other liability concerns of our clients.
In order for a business to protect itself against liability for chemical exposures from the use of its products that are sold in California, it must consider potential liability relating to both on-premises exposures to customers and employees and off-premises exposures to members of the public. Alston & Bird frequently perform audits tailored specifically to ensure such Proposition 65 compliance—our lawyers typically conduct these audits independently, but also have done so in conjunction with an environmental consultant.
Our team includes a member of the advisory board of the Proposition 65 Clearinghouse, a leading publication in the Proposition 65 field, and the Chemical Waste Litigation Reporter, a prominent environmental law publication.