• Proposition 65 Amendments Require Re-evaluation of Products and Warnings
  • August 9, 2017 | Authors: Mark E. Mercer; Michael J. O'Callaghan
  • Law Firms: Shumaker, Loop & Kendrick, LLP - Columbus Office; Shumaker, Loop & Kendrick, LLP - Toledo Office
  • California’s Safe Drinking Water and Toxic Enforcement Act of 1986, more commonly known as Proposition 65, requires consumer warnings for products that contain one or more of numerous “listed” chemicals that are known by the State to cause cancer or reproductive harm. As many companies have discovered the hard way, the law is not limited to businesses physically located in California. Rather, it applies to all products that knowingly and intentionally result in exposures to persons in California. If your product could make its way to California, Proposition 65 may affect you. The law may be enforced by the California Attorneys General, district attorneys, or city attorneys in larger cities. Importantly, a citizen suit provision in Proposition 65 allows for private enforcement by individuals. Penalties for violating Proposition 65 by failing to provide a required product warning for example, can be as high as $2,500 per violation, per day. In private party actions, the person bringing the action may retain 25% of any settlement and is entitled to attorney’s fees and costs. In an enforcement action, the plaintiff must merely show that a listed chemical is present in the product and the burden then shifts to the defendant to demonstrate compliance. Private party enforcement of Proposition 65 compliance remains an active and viable threat. For example, in 2016 private parties collected over $21,000,000 in attorney’s fees and costs alone related to Proposition 65 suits.