Every manufacturer and retailer that introduces products into California is potentially responsible for compliance with California’s Proposition 65. Proposition 65, enacted in November 1986, contains an ever-growing list of more than 800 chemicals deemed by the State to pose a risk of cancer or reproductive harm to state residents. From ensuring fair standards when a chemical is listed to defending enforcement actions alleging violations, our Proposition 65 team’s goal is simple: to efficiently minimize the cost and risk that Proposition 65 poses to your business. Our national team offers expertise across the Proposition 65 spectrum:
COMPLIANCE -- TESTING, WARRANTIES and WARNINGS
- Perhaps the greatest challenge that Proposition 65 poses to businesses is ongoing compliance because the regulatory and enforcement landscapes are constantly evolving. We partner with our clients to simplify that process by keeping them updated as new products are added to the Proposition 65 list, informing them of changes in the regulations and labelling requirements, and keeping them apprised of new enforcement trends. For those clients who are new to the marketplace or are unsure of their existing Proposition 65 compliance obligations, we can perform compliance audits to make sure their testing protocols reflect the latest requirements and safe harbor levels, and work with them to implement practical and effective compliance protocols. For those clients that have decided to use warning labels either on their products, at the point of sale, on their website, or elsewhere in their retail space, we help ensure that the warnings contain the required language and are in compliant locations. Finally, we help businesses entering into either upstream or downstream supply contracts to negotiate the allocation of Proposition 65 risk, and help clients ensure that their contracts contain appropriate indemnity and warranty provisions. In short, we do everything that we can to help businesses get in compliance with Proposition 65 and stay that way.
ENFORCEMENT -- 60-DAY NOTICES and PROPOSITION 65 LITIGATION
- The private enforcement bar continues to actively “litigate to regulate,” seeking to add new chemicals to the Prop 65 list, and to apply the Prop 65 warning requirements to new product families. As a result, we have extensive experience defending retailers, distributors, and manufacturers in Proposition 65 enforcement actions, involving a wide range of products. From the time that a business receives a 60-day notice of violation, we work through the process of evaluating the risk, determining whether a product recall, reformulation or warning label is necessary, and negotiating either a dismissal or reasonable settlement with the enforcement group.
- From the inception of Proposition 65 we have helped our clients and the California business community work with OEHHA to implement “significant risk” thresholds that require a showing of harm before a chemical can be added to the list of regulated chemicals as a carcinogen.
- We have managed the chemical listing process for specific chemicals by working with regulators to establish scientifically-based safe harbor thresholds. The listing process often involves in-depth public comment periods to establish and rebut what the appropriate safe harbor level should be, which in turn can mean the difference between Proposition 65 compliance or non-compliance for a company’s flagship products depending on the concentration of the proposed chemical.