Proposition 65

California’s Proposition 65 prohibits businesses from knowingly and intentionally exposing persons without warning to chemicals listed by the state as being either carcinogens or reproductive toxins, and further prohibits the discharge of such chemicals into sources of drinking water. Alston & Bird attorneys have provided our clients with Proposition 65 compliance advice and defended them in Proposition 65 lawsuits since the initiative was first adopted by voters in 1986.

Proposition 65 Litigation Experience

• Successfully represented numerous manufacturer clients in Proposition 65 matters alleging unlawful chemical exposures from the use of consumer products, including glassware, household cleaning products, foods, dietary supplements, jewelry, toys and automotive repair products.
• Successfully defended several major plumbing manufacturers in a Proposition 65 trial where the plaintiff, a private enforcement group, alleged that plumbing valves exposed persons to lead and discharged lead to drinking water through the alleged leaching of lead from brass components when installed in a drinking water system. This matter involved the interpretation of a Proposition 65 implementing regulation concerning proper sampling and chemical detection methods.
• Successfully represented hotel and motel owners and operators in several consolidated lawsuits alleging unwarned exposures to tobacco smoke at hundreds of locations throughout California. Litigation resulted in the dismissal of many of the lawsuits for failure by the plaintiffs to issue proper notices of intent to sue, a private citizen suit prerequisite. Dismissals were affirmed by the court of appeal in a published decision.
• Obtained summary judgment on behalf of a major chemical manufacturer against allegations that its product labels and Material Safety Data Sheets were inadequate and out of compliance with Proposition 65. The litigation was a significant contributing factor to a landmark ruling by federal OSHA exempting out-of-state manufacturers from providing Proposition 65 warnings for workplace exposures in California.
• Obtained summary judgment on behalf of a tobacco importer/distributor and a retailer against charges that the warnings it provided on cigars sold in California were not in compliance with Proposition 65.
• Represented a major plumbing manufacturer in an industry-wide lawsuit filed by the attorney general and two environmental organizations against numerous plumbing manufacturers for alleged Proposition 65 violations stemming from faucet lead discharges to water.
• Defended several major battery manufacturers in various lawsuits for violations of Proposition 65 alleging air lead emissions from battery recycling and manufacturing operations and for consumer product exposures through the handling of lead acid batteries.
• Defended a large petroleum industry group against Proposition 65 violations stemming from the fact that its propane, which when combusted produces carbon monoxide (a Proposition 65 listed chemical), was not accompanied by a Proposition 65 warning.
• Represented a manufacturer of gasoline-powered chainsaws and other tools in a matter alleging exposure to benzene through exhaust inhalation.

Proposition 65 Compliance Counseling Experience

• Conducted comprehensive audits for a large aerospace concern at each of its 70-plus manufacturing and other facilities throughout California.
• Performed audits for numerous U.S. and Canadian manufacturing and retailer clients that market a wide variety of products in California to determine compliance with Proposition 65. If such audits concluded that warnings were warranted, advised clients on the content, placement and frequency of such warnings, or on the strategy for the reformulation of products to avoid warnings.
• Conducted comprehensive audits of battery manufacturing facilities in Southern California.