Proposition 65

Crowell & Moring helps clients address and fulfill the legal, regulatory, and technical demands surrounding Proposition 65. We protect clients against potential liability arising from purported chemical exposures from the use of their products in the consumer, occupational, and environmental arenas. Our lawyers conduct sophisticated training programs, develop company-specific guidance and compliance procedures, draft indemnity and hold harmless agreements, and maintain coordinated communication throughout the supply chain.

Through the breadth and depth of our collective experience, we routinely interact with Proposition 65’s principal plaintiff enforcers (both public and private) and their attorneys. This experience empowers us to navigate all regulatory, policy, and litigation challenges faced by companies doing business in the Golden State.

Policy Advocacy and Regulatory Experience

Since Proposition 65’s inception, the firm has advocated on behalf of myriad industry clients in policy and public comment proceedings before the California Office of Environmental Health Hazard Assessment (OEHHA), the Department of Pesticide Regulation (DPR), and the Department of Toxic Substances Control (DTSC); solicited advice from the California Governor’s and Attorney General's Offices concerning statutory interpretation and enforcement issues; delivered timely and impactful seminars and webinars to multiple trade associations and their members concerning updated legal requirements; and defended scores of companies confronting 60-day notices and civil lawsuits alleging Proposition 65 violations.

Retail and Consumer Product Compliance

The firm has become a trusted advisor for major consumer products companies served with notices of violation (NOVs) and follow-on litigation of California’s Proposition 65 including, most recently, for issuing thermal receipts at the register and using thermal labels and stickers in their stores. We have assisted numerous clients with Proposition 65 compliance matters involving cadium, PFAS, lead, bisphenol A (BPA), and bisphenol S (BPS) — the last being a recent addition to Proposition 65’s list of chemicals known to cause cancer or reproductive harm. Our team provides targeted counsel on navigating Proposition 65 compliance for retailers, offering strategic guidance to address and mitigate potential liability in brick and mortar as well as online  store environments.

Reference Materials:

• Statute
• Regulations
  • Chemical List
• Final Statement of Reasons (Articles 1 through 9)
  • Sections 25600–25607 (new warning regulations)
  • Supplement to FSOR (new warning regulations)
• Maxiumum Allowable Dose Level (MADLs) – reproductive toxicant
• No Significant Risk Levels (NSRLs) - cancer
• Safe Use Determinations
• Cases
• Office of Environmental Health Hazard Assessment (OEHHA)
• California Office of Attorney General (Proposition 65)
  • Private Enforcement Regulations
  • Settlements by the State
  • Guidance Letters