The Safe Drinking Water and Toxic Enforcement Act (Prop 65) prohibits businesses with 10 or more employees from exposing Californians from chemicals listed in the statute without providing “clear and reasonable” warnings. The Prop 65 list contains over 900 chemicals that are known to cause cancer or reproductive harm. A listed chemical requires a warning under Prop 65 unless the alleged exposure is shown to be below the “no significant risk level” (NSRL) for a listed carcinogen, or below the “maximum acceptable dose level” (MADL) for a listed reproductive toxicant.
Who May Initiate an Enforcement Action?
Enforcement actions for Prop 65 violations may be initiated by certain public prosecutors like the Attorney General, or by any private entity “in the public interest.” The plaintiff bears a relatively low burden in initiating an action, alleging that an exposure to the listed chemical is occurring (at any level), that no warning was provided, and, in boilerplate assertions, that the alleged violator knowingly and intentionally caused such unwarned exposures. Unlike other legal actions alleging damages, the plaintiff need not show that that an injury was incurred by an individual or that the action harmed property or the environment.
Penalties for Violations of Prop 65
The defendant in litigation bears the burden of proving that exposures to the alleged listed chemical in a product do not exceed the relevant NSRL or MADL. Defending a Prop 65 lawsuit on the merits therefore requires experts such as toxicologists. It can be very difficult – and it is certainly expensive – for a business to demonstrate that a Prop 65 warning does not apply to its product. The penalties for failure to comply with Prop 65 can be substantial. Fines up to $2500 per day for each violation can be imposed on an entity that has been found to violate Prop 65. Additional penalties of up to $2500 per day per violation can be imposed if a public prosecutor initiates an unfair business practice claim as part of Prop 65 enforcement action. Other remedies are also available to plaintiffs including injunctive relief where the court may require a company to correct conduct that led to a violation.
Plaintiff’s Awards in Prop 65 Lawsuits
The requirements to bring a Prop 65 enforcement action are minimal and defendants face hefty penalties. Plaintiffs and their counsel are entitled to lucrative awards if they can prove violations of the statute have been committed. Private plaintiffs are entitled to 25 percent of the penalty amounts with the balance retained by the state. Public and private enforcers may also recoup attorney’s fees and costs, which comprise a significant percentage of the amounts paid by defendants. The aggressive pursuit of enforcement actions under Prop 65 shows no indications of slowing down with the onset of more onerous warning obligations under the new regulations effective August 2018. In fact, those new regulations may trigger a new wave of “bad warning” claims, in which plaintiffs allege that companies did not do a good enough job of providing compliant warnings.
Grimaldi Law Offices has been advising clients for over 20 years on chemical and product law. For knowledgeable advice and in-depth analysis on your Prop 65 compliance obligations, contact Grimaldi Law Offices at (415) 463-5186 or email us at [email protected].
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