Contact: Michèle Corash or Robert Falk
Morrison & Foerster is widely recognized as having the premier Proposition 65 and consumer products law practice in California.
The firm has defended hundreds of enforcement actions on behalf of businesses and trade groups, focusing on all liabilities
related to consumer products, including advising manufacturers, retailers, and trade associations on compliance with labeling
and warning requirements.
Morrison & Foerster also successfully defends clients in litigation brought under Proposition 65, California Business and
Professions Code sections 17200 et seq., the Consumer Legal Remedies Act and other federal and state consumer and product
safety statutes. The consumer products range from foods and drugs to common appliances, electronics, housewares, and large
equipment.
The firm regularly counsels and advises businesses on compliance with Proposition 65’s requirements and has represented the
business community and a variety of trade associations in every Proposition 65 reform effort and rulemaking, as well as in
many Proposition 65 chemical listing procedures.
Representative Matters
Over-the-Counter Drugs. Proposition 65 suit against SmithKline Beecham Consumer Healthcare, Johnson & Johnson, and 15 other manufacturers, marketers,
and retailers of Nicoderm CQ, Nicorette, and Nicotrol smoking cessation products. Plaintiff alleged that the pregnancy warning
language on the products does not satisfy Proposition 65’s requirements.
Result: We won summary judgment on the ground of federal conflict preemption. The California Attorney General intervened on behalf
of the plaintiff, but the California Supreme Court unanimously ruled in favor of our clients. 32 Cal.4th 910 (2004). The Supreme
Court’s decision was the first favoring a defendant’s position in a Proposition 65 action, the first holding that Proposition
65 could be and was preempted by federal law, and the first ruling that the State could not defeat preemption by requiring
off-label advertising.
Chocolate and Other Food Cases. Represented Hershey Foods Corporation, Mars Incorporated and an 18-company joint defense group with respect to a Proposition
65 action involving lead and cadmium in chocolate products. We demonstrated that the chemicals in question are naturally occurring,
and in any event, at levels qualifying for Proposition 65’s no significant risk/no observable effect defense. We defend other
food companies, including Burger King, Frito Lay, Kelloggs, and Heinz on the same basis.
Result: The California Attorney General issued a letter stating that the plaintiffs’ claims “lacked merit.” The California Department
of Health Services denied the plaintiffs’ petition to have chocolate declared an adulterated food and determined that it is
safe. On the eve of trial, the plaintiffs agreed to dismiss their claims with prejudice. We have since represented other major
food companies in a variety of cases concerning lead, cadmium, mercury, and acrylimide exposures.
Engines/Automotive. Suit against Caterpillar, Detroit Diesel, Ford, Chrysler, and other major manufacturers of engines alleging that they were
responsible for exposing pedestrians, employees, and others to carcinogens in the absence of warnings.
Result: We first obtained a determination from the Attorney General’s office that the manufacturers were not responsible for issuing
warnings. We then obtained summary judgment for our clients—the first ever defense judgment issued in a litigated Proposition
65 case.
Part II. Another citizen’s group filed suit against manufacturers of “off-road” engines and their dealers.
Result: We argued that the res judicata effect of a prior settlement precluded this action, took this case to trial on the merits,
and obtained a favorable judgment for our clients—the first trial victory for defendants in a Proposition 65 case. (Our victory
was also upheld on appeal.)
Consumer Electronics/Appliances. Proposition 65 and CA Business & Professions Code Section 17200 lawsuit against Sharp, Dell, Sunbeam, Panasonic, and almost
100 other companies that manufacture, distribute, or sell various consumer electronics and household appliances having PVC-coated
wires, cables, and/or power cords. The claims alleged that the companies failed to provide warnings to consumers who handled
the PVC and were thereby exposed to trace amounts of lead and other chemicals.
Result: We obtained a freeze on discovery and negotiated a joint technical evaluation and cost-effective settlement. The settlement
offered an exclusion from warning for many products and an extensive and flexible menu of warning options for others. The
initial settling companies we represented were also allowed to obtain reimbursement of their defense expenses and legal fees
and minimize the cost of resolving the claims by means of an “opt-in” program, which allowed over 100 other companies to contribute
to and join in the settlement.
Faucets and Other Water-Related Products. Suit brought by the California Attorney General, with parallel class action claims filed by the Natural Resources Defense
Council and the Environmental Law Foundation, alleged that manufacturers violated Proposition 65 by: 1) failure to warn, and
2) discharge of lead to a source of drinking water. We defended Masco Corporation/Delta Faucet (the world’s market leader).
Result: We obtained a trial and appellate court decision throwing out the plaintiffs’ “prohibited discharge” claims, and settled
the remaining “failure to warn” claims at low cost. The California Supreme Court subsequently overturned the discharge” decision
with respect to companies that had not settled. We have since represented manufacturers of pumps, water meters, irrigation
components, water filters, and hoses.
