California's Proposition 65

 

California’s Safe Drinking Water and Toxic Enforcement Act of 1986 – Proposition 65

Keller and Heckman has represented clients in hundreds of Proposition 65 matters since the law’s inception in 1986. Our attorneys provide a full range of services on Proposition 65 issues, ranging from compliance matters to defense of 60-Day Notices filed under the law. Augmented by our office in San Francisco, our work on Proposition 65 spans a wide breadth of practice areas, including food and drug, environmental, chemical control, workplace safety and health, pesticides, product safety, transportation, telecommunications, and e-vapor and tobacco products. Our attorneys integrate their expertise in these practice areas to provide tailored Proposition 65 services for a variety of products, including:



In addition to our attorneys, Keller and Heckman’s in-house scientific staff of chemists and toxicologists complements and broadens our legal expertise in Proposition 65. We work together to develop safe harbor levels for listed chemicals (where needed), and to perform exposure assessments to determine compliance with the law’s safe harbor levels for listed chemicals for a wide range of industries. 

The amendment to the Proposition 65 regulations in effect as of August 30, 2018, includes significant changes to safe harbor content and methods of transmission. Therefore, understanding how to comply with the recent changes, and the potential impact on one’s business, is now more important than ever. 

Scientific Assessments

At Keller and Heckman, we believe that sound legal and scientific analysis is the foundation for good public policy. With the assistance of our staff scientists, we work with clients to ensure that all relevant health and safety data are considered before a chemical is listed as “known to the State of California” to cause cancer or reproductive harm. Our scientific staff members bring expertise in exposure assessment and toxicology to support our legal team, and our lawyers and scientists often bring knowledge of occupational health, toxicology, chemistry, and environmental considerations to Proposition 65 questions. In addition, many of our attorneys have technical backgrounds and years of experience dealing with scientific and technical issues in the regulatory arena. 

We help clients evaluate whether their foreseeable uses will result in exposures above relevant safe harbor levels known as No Significant Risk Levels (NSRLs) for listed carcinogens and Maximum Allowable Dose Levels (MADLs) for listed reproductive toxicants. We also work with clients to derive safe harbor levels using the procedures outlined in the OEHHA regulations for the many cases in which the agency has not established these values. We also assist with product formulation and evaluation criteria that may eliminate Proposition 65 issues altogether. 

Compliance Counseling

Keller and Heckman develops compliance strategies for clients located throughout the supply chain. We have assisted downstream manufacturers with developing “clear and reasonable” warning language, and have counseled upstream suppliers on strategies for communicating the presence or likely presence of Proposition 65-listed chemicals to their customers. This work extends to preparing indemnity agreements to address liability in the event of Proposition 65 claims. We also assist clients in acquiring and analyzing Proposition 65 insurance coverage.

Enforcement Defense

We help clients resolve claims under Proposition 65 in a cost-effective, expeditious manner. Given the steep penalties for Proposition 65 violations—up to $2,500 per day per violation—and the unique “bounty hunter” private enforcement aspect of the law, it is critical to have experienced litigation counsel involved from the receipt of a 60-Day Notice until its final resolution, including developing a testing plan and negotiating the terms of a settlement agreement. Bounty hunters are entitled to attorneys’ fees, which are often the largest part of any settlement. This factor is an important component that requires negotiation experience. We have been successful at reaching favorable settlements for our clients in matters involving complex issues with lead, Di(2-ethylhexyl)phthalate (DEHP), Diisononyl Phthalate (DINP), cadmium, acrylamide, diethanolamine and many other Proposition 65 listed chemicals. 

Advocacy

We also often participate in legislative and regulatory proceedings on policy aspects of Proposition 65, and have done so since its adoption in 1986. Keller and Heckman assists companies and trade associations with participating in the regulatory process by analyzing proposals from OEHHA and the California Attorney General, drafting substantive comments in response to such proposals, and taking action regarding listing decisions. 

Collectively, at the rulemaking, compliance and litigation defense levels, we work to create the best possible regulatory landscape for clients, minimize the potential for challenges, and, should an enforcement action become inevitable, provide a vigorous defense. To contact us with questions or for more information about Proposition 65, email prop65@khlaw.com, or call our Washington office at 202-434-4100 or our San Francisco office at 415-948-2800.

















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