Morrison & Foerster lawyers have been involved in Proposition 65 ("Prop 65") litigation and regulation since its enactment in California in 1986, defending most of the major Prop 65 enforcement actions and representing the business community in virtually every reform effort and Prop 65 rulemaking. We evaluate and defend products from the design and manufacturing phase to their distribution, sale and use, helping clients assess and mitigate risks, while building litigation defenses and effective compliance programs. When companies face Prop 65 60-day notices and lawsuits, we vigorously and cost effectively represent them in the courtroom, at the California Attorney General’s office, and at the negotiating table.
No other defense firm has more experience in Prop 65 litigation. We won a unanimous decision by the California Supreme Court that federal law can preempt Prop 65—the first and only Supreme Court Prop 65 decision favoring a defendant. We also obtained declaratory relief from the California Court of Appeal stopping a threatened Prop 65 bounty hunter action before it was filed. In the trial courts, we won the first Prop 65 defense verdict ever issued and have won every other Prop 65 enforcement defense matter we have litigated to judgment. We have been effective for clients against a recurring cast of Prop 65 plaintiffs, including the California Attorney General; the Center for Environmental Health/Lexington Law Group; the Mateel Environmental Justice Foundation/Klamath Environmental Law Center; the Consumer Advocacy Group; the Environmental Law Foundation; and various clients of Prop 65 bounty hunter law firms operated by Cliff Chanler, Roger Carrick, Reuben Yeroushalmi, Raphael Metzger, and Tony Graham.
No other law firm has more experience in representing trade associations and individual companies with respect to chemical listings under Prop 65. We have avoided the Prop 65 listing of some chemicals and/or qualified the listing of others, using scientific arguments to defend our clients on the basis that chemical exposure or discharge levels from their products or operations do not violate the statute. Whether used for regulatory advocacy, compliance purposes, or litigation of a defense, our specialized technical expertise in human health risk and exposure assessment can efficiently guide clients on their use of consultants and expert witnesses. Our specific Prop 65 chemical experience includes (among others listed by the Governor): acrylamide, arsenic, asbestos, bisphenol-A, cadmium, carbon black, ethylbenzene, DEHP and other phtalates, diesel engine exhaust, formaldehyde, hexavalent chromium, lead, 4-Methylimidazole (4-MEI), mercury, perchloroethylene, polycyclic aromatic hydrocarbons (PAHs), toluene, and volatile organic compounds.