Proposition 65 banner

Our lawyers have been the go-to authority on Proposition 65 since its adoption. MoFo’s Prop 65 team has established itself as the business community’s preeminent voice in Prop 65 litigation, settlements, listings, and reform efforts. Our lawyers are routinely recognized for their impressive performance: partners Robert Falk, Michael Steel, and William Tarantino are all hailed by Legal 500 and Chambers & Partners for their litigation expertise. No defense group is more experienced, and no team is better prepared to deliver quality results.

Our Clients and Industries

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

Our Experience

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

  • A California Supreme Court case holding that federal regulation of non-prescription drugs preempted Prop 65—the first and only Supreme Court Prop 65 decision favoring a defendant. Dowhal v. SmithKline, et al.
  • A defense verdict from trial upheld by the California Court of Appeal. We obtained a favorable decision from both courts based on actual consumption of food products not presenting sufficient levels of lead exposure to require Prop 65 warnings—one of the most significant decisions in the statute’s 25-year history. Environmental Law Foundation v. Beech-Nut Nutrition Corp., et al.
  • A California Court of Appeal decision which 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 first defense verdict achieved after trial in a Prop 65 case 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 victory vindicating a non-safe harbor Prop 65 warning program where we also persuaded the trial court 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 in a case on cosmetics and sunscreens involving a complex exposure scenario. Public Interest Alliance, LLC v. TiO2 Joint Defense Group

Compliance and Settlement: Even with this track record of courtroom success, our lawyers take pride in knowing when and how costly litigation can be avoided.

  • We lead the way in negotiating innovative and cost‑effective Prop 65 settlements and consent judgments and getting companies, plaintiffs, the California Attorney General’s office, and the courts comfortable with them.
  • We negotiated the first major Prop 65 consent judgment and have since 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 allow our clients to address their defense and indemnity obligations to their customers at no additional cost.
  • Products addressed through our more significant settlements include crystal, glassware and ceramics, mini-blinds, children’s furniture, toys, fashion accessories, foam cushioning, vinegar, tea, and chocolate, among others.

Our Knowledge

  • Major players:
    • 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 bar

  • “Hot” Prop 65 chemicals (as well as many others):
    • acrylamide
    • lead
    • cadmium
    • DEHP/DINP and other phthalates
    • furfuryl alcohol
    • bisphenol A (BPA)
    • carbon monoxide
    • formaldehyde
TiO2 Joint Defense Group
Defended over 30 companies, including most major cosmetic makers, in a suit alleging that titanium dioxide, which is commonly used as a key ingredient 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.
Physicians Committee for Responsible Medicine v. KFC Corp.
Secured a victory on behalf of KFC and YUM! in Proposition 65 enforcement action brought by a vegan group seeking to use Proposition 65 warnings to stigmatize the consumption of grilled chicken. The trial court sustained defendants’ demurrer on a number of 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.
Environmental Law Foundation v. Beech-Nut Nutrition Corp., et al.
(Cal. Superior Court, Alameda County). 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 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, and may have application, including to consumer class action cases, going forward.

Legal 500 US 2017
Environment Litigation
Product Liability, Mass Tort, and Class Action: Consumer Products
Product Liability, Mass Tort, and Class Action Defense: Toxic Tort

Chambers USA 2017
National: Product Liability & Mass Torts
California: Environment

Email 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.

©1996-2019 Morrison & Foerster LLP. All rights reserved.