Regulatory Compliance Including Proposition 65

Klinedinst’s Environmental and Land Use group represents businesses to ensure compliance with California’s Safe Drinking Water and Toxic Enforcement Act of 1986, better known as Proposition 65. Our lawyers also respond when our clients are accused of failing to comply with the regulatory requirements of Proposition 65.

Proposition 65 was passed by the voters in 1986 and requires businesses to provide warnings to California consumers when they may be exposed to chemicals known to cause cancer, birth defects or reproductive harm. These chemicals can be found in the products that California consumers purchase, in their homes or workplaces, or that are released into the environment.

Proposition 65 is overseen by Cal/EPA’s California Office of Environmental Health Hazard Assessment (OEHHA). As part of administering Proposition 65, California maintains a comprehensive list of these chemicals which is updated annually.

Enforcement of Proposition 65 can be handled by government attorneys, such as the California Attorney General’s Office, as well as city attorneys and district attorneys. More often however, Proposition 65 claims are made and filed by dedicated consumer advocacy law firms on behalf of private citizens against manufacturers, wholesalers, retailers or other businesses that failed to provide the requisite warnings. There are strict penalties and attorney fees which can make such claims lucrative at the expense of the offending party. Although rare, the statute provides for penalties as high as $2,500 per violation per day and attorney fees are typically the largest component of the settlement.

Lawsuits for Proposition 65 violations must be preceded by a 60-day notice of violation which allows for early settlement, a “cap” on exposure and provisions for curing the failure. If suit must be filed, fees and costs can rise dramatically and settlement can only be secured through a court approved consent judgment.

Klinedinst attorneys work closely with businesses to ensure compliance with Proposition 65’s regulatory requirements. If a claim is made, our attorneys have handled hundreds of claims and defended numerous lawsuits. We are experienced at negotiating resolution with both the California Attorney General’s office as well as the consumer advocacy groups that bring the majority of these claims.