California Proposition 65 Litigation

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What Is California's Proposition 65?

In 1986, voters in California passed the Safe Drinking Water and Toxic Enforcement Act, also known as "Proposition 65."

Proposition 65 requires the State of California to maintain a list of chemicals known to cause cancer or birth defects. If a business produces a product containing significant amounts of a listed chemical, it must give "clear and reasonable" warning to Californians, usually in the form of a product label or posted sign. Businesses are also prohibited from discharging significant amounts of the listed chemicals into drinking water.

What Are the Elements of Proposition 65?

Proposition 65 states that, "[n]o person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual.

Once a chemical is added to the list, businesses have 12 months to comply with the warning requirement and 20 months to comply with the discharge ban.

Who Must Follow Proposition 65?

Proposition 65 applies to all businesses doing business in California with more than 10 employees. Government agencies are exempt.

Consequences of Violating Proposition 65

The California Attorney General, a district attorney or city attorney in cities with more than 750,000 residents, or any person acting in the public interest may sue a business for violating Proposition 65.

Persons alleging a violation must send written notice of the violation to the business at least 60 days before filing a lawsuit. Government prosecutors are exempt from the 60-day notice requirement.

Businesses who violate Proposition 65 may face penalties as high as $2,500 per violation per day. Additionally, when members of the public bring lawsuits, an infringing business may be required to pay the plaintiff’s legal fees, under California Code of Civil Procedure section 1021.5.

Should I Contact an Experienced Attorney?

Since Proposition 65 can lead to steep penalties and fees, businesses that deal with substances on the Proposition 65 list should consult with a business attorney about compliance with the statute. If your business has already received a 60-day notice of violation, you should contact an attorney as soon as possible to protect your interests.

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Last Modified: 06-20-2014 04:31 PM PDT

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