PROPOSITION 65: DESCRIPTION

McKenna Long & Aldridge is at the forefront of the Proposition 65 defense bar. The firm represents a broad range of manufacturers, refiners, distributors and retailers and has brought about some of the most significant developments in the law. We have defended many of the leading Prop 65 "failure-to-warn" suits -- including those alleging "consumer product," "occupational" and "environmental" exposures -- and are defending many of the leading "discharge-to-drinking-water" cases that will become landmarks for the future enforcement of the law.

Our successful defense in the case of As You Sow v. Shell Oil Company is one of the few defense judgments in a contested Prop 65 case. Rulings by the Superior Court in San Francisco confirmed the principle that Prop 65 warning requirements may not be enforced against manufacturers and distributors of products manufactured outside California for use in the workplace.

Our representation of the Coalition of Manufacturers for the Responsible Administration of Proposition 65 laid the groundwork for the decisions in As You Sow v. Shell. In the course of this representation we successfully petitioned the United States Occupational Safety and Health Administration to impose conditions on the incorporation of Prop 65 into the State's Hazard Communication Standard and testified before Congress at a hearing before the House Committee on Small Business during its investigation of Prop 65 abuses against manufacturers and distributors of workplace chemical products.

In the case of As You Sow v. Ashland Chemical Company, we demurred successfully to a complaint on the ground that the plaintiff's Notices of Intent to Sue were too vague to inform the plaintiff or the State of the nature of its allegations and thus to confer standing on the plaintiff to bring suit. This led shortly thereafter to the promulgation of the State's present Notice regulations, which have brought some procedural regularity to the citizen-suit enforcement process.

On the "discharge-to-drinking-water" area, we presently represented one of the nation's leading petroleum refiners and distributors in the multi-party and multi-jurisdictional "Gas Station Cases." These cases, arose under the captions Consumer Advocacy Group v. ARCO, et al., Communities for a Better Environment ("CBE") v. TOSCO, et al. and other actions initiated by district attorneys in Solano and Orange Counties, arise from claims that leaks, accidental releases and underground migration of petroleum products from over 2000 service stations and other facilities constitute violations of Prop 65. The cases have established precedence for all manufacturers who own or operate facilities in California, or have done so in recent decades, at which there is contamination of soil or groundwater with chemicals that are listed under Prop 65.

McKenna Long & Aldridge has defended many of the more significant multi-defendant "industry" cases. These include the "asphalt cases," brought against approximately 1500 companies that apply asphalt roofing materials; the "auto touch-up paint cases," brought against the leading manufacturer of auto touch-up paints and all of the major automobile manufacturers; the "DEHP cases," brought against manufacturers and distributors of intravenous feeding materials; the "mercury fillings case," brought against manufacturers and distributors of dental amalgam; the "lead bullets case," brought against manufacturers of firearms and accessories and numerous "spray-paint cases" brought against manufacturers and distributors of spray paints containing methylene-chloride.

We further have represented and are currently representing manufacturers and distributors of a divers range of products, including the following:

Propane
Medical Devices
PVC Cabling
Candles
Diesel Trucks
Brass Keys and Locks
Cosmetics
Pesticides
Cement Products
Smoking Cessation Products
Cleaning Products
Wood Finishing Products
Paint
Cigarette Matches
Decorative Sand
Soaps and Detergents
Model Glue
Arts & Crafts Materials
Irrigation Equipment
Pharmaceuticals
Orthodontic Devices
Automotive Paints
Kitty Litter Additives
Industrial Chemicals
Food Additives
Hand tools

Our defense and counseling of Prop 65 clients is enhanced by ready access to superior scientific and technical resources provided by Technology Sciences Group, Inc. (TSG), a subsidiary of our law firm. TSG toxicologists, chemists and regulatory specialists regularly counsel clients in the chemical, food additive, pesticide and other manufacturing industries regarding compliance with Prop 65, prepare exposure and risk assessments and evaluate hazards of chemical substances. TSG has assisted us in our defense of many of the matters described above and in numerous other cases directed against single companies.