California's Proposition 65

DLA Piper's Food and Beverage and Consumer Product lawyers maintain an integrated product safety, compliance and recall practice throughout the world. An important aspect of that work concerns California's Proposition 65. We have decades of experience counselling and defending food, beverage and consumer product clients, and are involved in each new frontier of Prop 65 as new target chemicals emerge and new regulations come into force.

We have deep relationships and frequent contact with the State Attorney General's Proposition 65 Enforcement Division and know well the plaintiffs' bar focusing on Prop 65 litigation. With forward-looking compliance counseling, our goal is to stop Prop 65 enforcement actions before they begin. When they do occur, we are able to offer our clients the advantage of technical experience in the statute's workings, aggressive defense when necessary, and creative, cost-effective settlements when they make sense.

Our team understands the complex issues in Proposition 65 litigation, including those that arise from the increased attention to chemicals in food and beverages, such as lead, arsenic, cadmium, acrylamide, furfuryl alcohol, 4-MEI, aldehydes, diacetyl, and more.

Our lawyers are experienced in Proposition 65 law and have extensively studied and written about the upcoming regulatory changes taking effect in mid-2018.
We work with clients to take control of the process of resolving Proposition 65 matters. We reduce the levels of uncertainty in an inherently uncertain process regarding outcome and price tag and provide a cost-effective and efficient service targeted at achieving our clients' business objectives. We also proactively issue spot alerts that address developing regulatory and other risks.

Our track record of success in the courtroom arises from our successfully work on many hundreds of product liability cases in venues throughout the United States. This gives us the experience to keep our eye on the ball throughout the course of product litigation of any scope and to advise our clients accordingly. But our strategic thinking goes beyond dispute resolution: we are also highly experienced in working with the regulators to proactively identify and resolve potential issues early on, in a manner that minimizes the business impact on your company.

Within our global footprint, our consumer and industrial product lawyers in large and small markets throughout the world maintain an integrated product safety, compliance and recall practice. We have served our clients who operate globally by defending and coordinating hundreds of multi-jurisdictional matters, ranging from global product compliance counseling and program development to major multi-jurisdiction recalls.

When our lawyers guide clients through government or private enforcement actions, we focus on achieving client goals efficiently, whether that means vigorous litigation or efficient, early resolution.

Clients We Serve

Our practitioners offer in-depth Proposition 65 knowledge to manufacturers, distributors and retailers across nearly every product line. Here are some key representations, focusing on the food and beverage industries:

  • Soft drink manufacturer regarding benzene formation from sodium benzoate
  • Coffee manufacturer and retailer regarding lead, arsenic and acrylamide in coffee drinks
  • Cookie and snack company regarding lead and cadmium in cocoa powder and chocolate
  • Soft drink flavoring company regarding 4-MEI content
  • Global food product manufacturer regarding lead and arsenic in protein powders
  • Global food product manufacturer regarding lead and arsenic in health snack bars
  • Major canned tuna distributor regarding compliance plan for new regulations specific to BPA in canned goods
  • Chip manufacturer regarding acrylamide in potato chip products
  • Chip manufacturer regarding furfuryl alcohol in potato chip products
  • International baked goods chain regarding acrylamide in baked confections
  • Nationally distributed baking mix company regarding lead and arsenic in ginger and molasses content
  • Health drink company regarding cadmium in coconut-based juices
  • Company developing a new protein powder product regarding Prop 65 requirements
  • Major brand personal care product companies regarding numerous chemicals, among them lead, cadmium, DEA, cocamide DEA and others
  • Several electronic cigarette companies regarding nicotine, diacetyl, formaldehyde and acetaldehyde
  • Major US clothing retailers regarding contract terms for use with suppliers
  • One of the world's largest international retailers regarding a compliance program overhaul in anticipation of the August 2018 regulation changes
  • Numerous other household name manufacturers, retailers, and distributors of hundreds of products, from the automotive, chemical, electronics, consumer goods and construction industries, among others

Key Elements of DLA Piper's Prop 65 Practice

Overview

Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986, seeks to warn Californians about exposures to chemicals the state has determined cause cancer or reproductive harm, and to protect the state's drinking water sources from those chemicals. There are over 900 chemicals on the Proposition 65 list.

As it applies to products, Prop 65 prohibits businesses from "knowingly and intentionally" exposing anyone in California to a listed chemical unless a clear and reasonable warning is provided before exposure occurs. This law has resulted in millions of California warning signs and labels – familiar to anyone spending time in the state.

Proposition 65 is enforced by the California Attorney General and, by far, most often, by private citizen enforcers. These enforcers, typically backed by specialized law firms, have made big business out of profiting from Proposition 65 lawsuits. Liability for violating Proposition 65 can be significant – penalties for failing to comply can be as high as $2,500 per violation per day, attorneys' fees are recoverable by plaintiffs and litigation can be costly due to the technical nature of the statute and defenses therein.

Our Approach: Defending Enforcement Actions

We efficiently defend Proposition 65 enforcement actions and keep clients up to date and compliant with the statute and regulations. DLA Piper lawyers have vast experience defending a wide variety of food and beverage and consumer product clients, spanning nearly every industry that experiences Proposition 65 actions. We are just as skilled in deploying multi-layered strategies designed to eliminate cases before they're filed or, if filed, resolved in a manner that minimizes the impact on your business.

We frequently liaise with the lawyers in the State Attorney General's Proposition 65 Enforcement Division, and we are very familiar with the group of plaintiffs' attorneys experienced in Proposition 65 litigation. We are able to leverage these relationships to our clients' advantage by negotiating creative and cost-effective settlements or working to stop potential government enforcement actions before they begin. We have negotiated and authored numerous effective and creative settlement structures to our clients' benefit, with a focus on making settlements workable for the ongoing business concern and defining parameters to efficiently mitigate future risks.

When our lawyers guide clients through government or private enforcement actions, we focus on achieving client goals efficiently, whether that means vigorous litigation or efficient resolution. We strive to minimize impacts on your operations and protect your long-term business goals for challenged products.

Compliance Counseling

We are well situated to provide strategic advice on Proposition 65 compliance programs, sometimes starting as early as a new product's research and development stage. Other engagements have found our team advising on creating systems for efficiently identifying and posting necessary Internet warnings, or drafting terms for upstream suppliers or downstream distributors. Our goal is to help you achieve compliance without interruption to your business.

In this realm, our lawyers have experience advising and representing manufacturers and retailers of a wide variety of consumer products, such as food and beverage products; vitamin, mineral and herbal dietary supplements; cosmetics and personal care products; tobacco products, including e-cigarettes; consumer electronics; apparel and accessories; household appliances; plumbing and hardware; and automotive parts.