Chemicals + Proposition 65


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
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

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