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.
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.