Chemicals + Proposition 65

We have won more Proposition 65 victories for businesses than anyone else, including the first defense verdict, several Court of Appeal decisions, and the only unanimous Proposition 65 decision ever reached by the California Supreme Court. Our experience litigating about warnings for and the safety of chemicals is unparalleled.

For more than 30 years, MoFo’s team has been the business community’s preeminent voice in Prop 65 chemicals litigation, settlements, listings, and reform efforts. We also help clients comply with many other regulatory requirements involving chemicals, including TSCA, OSHA, FHSA, and the European Union’s REACH and RoHS Directives.

Product Experience

We have experience in all areas where chemical exposures might have an impact:

  • Apparel & Fashion
  • Automotive
  • Cleaning Products
  • Consumer Products
  • Cosmetics & Personal Care Products
  • Distributors
  • Electronics & Household Appliances
  • Food & Beverage
  • Food Service Establishment Operators
  • Grocers
  • Manufacturers
  • Plumbing & Hardware
  • Retailers
  • Workplace and Industrial Facilities

Litigation

Our lawyers have won some of the biggest and most significant Prop 65 cases to come before the California courts.

Work in Compliance and Settlement

We negotiate innovative and cost-effective Prop 65 settlements and consent judgments, getting companies, plaintiffs, the California Attorney General’s office, and the courts comfortable with terms that make scientific and practical sense. Specifically, MoFo’s Prop 65 team has…

Knowledge

We are major players and knowledge leaders in work with chemicals and their human health and environmental effects.

Litigation

Our lawyers have won some of the biggest and most significant Prop 65 cases to come before the California courts, including:

  • A California Supreme Court case holding that federal regulation of non-prescription drugs preempted Prop 65, being the first and only Supreme Court Prop 65 decision favoring a defendant. Dowhal v. SmithKline, et al.
  • A defense verdict at trial, subsequently upheld by the California Court of Appeal based on demonstrating that actual consumption of food products did not present even the low level of lead exposure requiring Prop 65 warnings. Environmental Law Foundation v. Beech-Nut Nutrition Corp., et al.
  • A California Court of Appeal decision that provided declaratory relief that Prop 65’s warning requirements for certain types of foods were preempted by federal law. American Meat Institute v. Leeman.
  • The very first defense verdict ever achieved after trial in a Prop 65 case, based on showing that a new plaintiff’s claims were barred due to the disposition of a prior plaintiff’s claim. Environmental World Watch v. Cummins Engine Co.
  • A trial court victory vindicating a non-safe-harbor Prop 65 warning program, where we also persuaded the judge to end trial early by showing that the plaintiff had failed to prevail on its initial burden. Global Community Monitor, et al. v. Lumber Liquidators, Inc.
  • A dismissal obtained for virtually an entire industry through a motion for summary judgment involving a complex exposure scenario in a case involving cosmetics and sunscreens. Public Interest Alliance, LLC v. TiO2 Joint Defense Group.

Work in Compliance and Settlement

We negotiate innovative and cost-effective settlements and consent judgments of chemical-related claims, getting companies, plaintiffs, public prosecutors, and the courts comfortable with terms that make practical sense. Specifically, MoFo’s team has:

  • Authored and pioneered dozens of creative settlement structures, including opt-in and group settlement programs that spread costs; future notice and cure provisions that avoid subsequent litigation expense; and far-reaching downstream-liability releases that empower our clients to address defense and indemnity obligations to their customers at no additional cost.
  • Achieved significant product settlements in crystal, glassware, and ceramics; mini-blinds; children’s furniture; toys; fashion accessories; plumbing products; foam cushioning; and vinegar, tea, chocolate, and baked goods, among other areas.
  • In addition to product-related cases, we have negotiated favorable settlements in a number of environmental exposure cases where a company’s operations allegedly exposed neighbors to chemical emissions or discharges.

Knowledge

We are major players and knowledge leaders in working with:

  • Office of the California Attorney General
  • Office of Environmental Health Hazard Assessment
  • Center for Environmental Health
  • Mateel Environmental Justice Foundation
  • Environmental Law Foundation
  • Environmental Research Center
  • Council for Education and Research on Toxics (CERT)
  • Virtually all of the other Prop 65 plaintiffs and plaintiff’s bars

“Hot” Prop 65 chemicals (as well as many others): 

  • Acrylamide
  • Bisphenol A (BPA)
  • Cadmium
  • Carbon monoxide
  • DEHP/DINP and other phthalates
  • Formaldehyde
  • Furfuryl alcohol
  • Lead
  • PFAS
Show More


Experience

  • Represented the nation’s largest specialty retailer of hardwood flooring, in over 130 class action cases in 28 states, a U.S. Consumer Product Safety Commission investigation, a California Air Resources Board enforcement action, and several state attorney general investigations. We successfully defended Lumber Liquidators in a Proposition 65 trial.

  • Defended more than 30 companies, including most major cosmetic makers, in a suit alleging that titanium dioxide, a key ingredient commonly used in cosmetics and sunscreens, causes a risk of cancer. Our motion for summary judgment was granted in July 2015. Plaintiff’s expert admitted that he could not specify which TiO2-containing products might result in exposure, and all he could say was that it was more likely than not that some products would require a cancer warning. The court agreed with our argument that such expert opinion does not provide a “credible factual basis” for going to trial. Plaintiff has agreed not to pursue an appeal of the judgment. The trial court sustained defendants’ demurrer on several grounds, including that the plaintiff’s failure to obtain evidence of an actual violation of Proposition 65 before serving its mandatory pre-suit notice rendered its notice inadequate and its complaint invalid. The California Court of Appeal agreed, affirming the judgment in February 2014.

  • Scored trial and appellate victories for Del Monte, Dole, Gerber, Smucker’s, Welch’s, and 10 other companies in a case brought by the Environmental Law Foundation and Baron & Budd class action firm. Plaintiff argued that the companies’ baby food, fruit juice, and packaged fruit products must carry cancer and birth defect warnings because they contained trace levels of lead, notwithstanding the FDA’s findings that they were safe and posed no unacceptable health risk. The trial judge and a unanimous panel of the California Court of Appeal rejected arguments that California’s Proposition 65 law required warnings on these products and rejected an enforcement policy long advanced by the California Attorney General and numerous plaintiffs’ groups that falsely assumed that every type of food is consumed each and every single day of the year. This decision, considered to be one of the most significant in Proposition 65’s 25-year history, opens the doors to companies that wish to use expert testimony based on actual exposure data to defend themselves in Proposition 65 and consumer class action cases. (Cal. Superior Court, Alameda County, upheld by the First Appellate District Court)

  • Private plaintiff Proposition 65 action brought against nearly the entire coffee industry (we represent a joint defense group of manufacturers and distributors of coffee) alleging that coffee in California should carry a warning to customers that coffee contains a chemical known to cause cancer. The chemical at issue, acrylamide, is formed as a byproduct of roasting coffee beans. Prior to the conclusion of trial, based on the same body of scientific evidence we presented to the court, the State adopted a regulation establishing that acrylamide and other Proposition 65 chemicals do not pose a significant risk of cancer when found in coffee.

  • Won a significant ruling from the California Court of Appeal for our two national trade association clients: the American Meat Institute (AMI) and the National Meat Association (NMA). When well-known Proposition 65 plaintiff Whitney Leeman threatened to sue numerous meat producers and retailers for their alleged failure to put Proposition 65 cancer and birth defect warnings on meat sold in California, the AMI and NMA filed a declaratory relief action against him, seeking a judicial declaration that federal law preempts the application of Proposition 65 to meat regulated by the USDA.

  • On behalf of our clients, we won summary judgment in a Proposition 65 suit filed against SmithKline, Johnson & Johnson, and 15 other manufacturers, marketers, and retailers of Nicoderm CQ, Nicorette, and Nicotrol, smoking cessation products used to help people quit smoking. The lawsuit alleged that the pregnancy warning language on the products did not satisfy Proposition 65’s requirements. The California Lawyer General intervened on behalf of the plaintiff, but the California Supreme Court unanimously ruled in favor of our clients. The Supreme Court’s decision was the first favoring a defendant’s position in 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.

Close

Feedback

Disclaimer

Unsolicited e-mails and information sent to Morrison & Foerster will not be considered confidential, may be disclosed to others pursuant to our Privacy Policy, may not receive a response, and do not create an attorney-client relationship with Morrison & Foerster. If you are not already a client of Morrison & Foerster, do not include any confidential information in this message. Also, please note that our attorneys do not seek to practice law in any jurisdiction in which they are not properly authorized to do so.