Proposition 65
McKenna Long & Aldridge (MLA) 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 Proposition 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 defense and counseling of Proposition 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 Proposition 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.
MLA has defended many of the more significant multi-defendant "industry" cases, including:
- 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 represent manufacturers and distributors of a diverse 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
Representative Engagements
- We represented the leading manufacturer of water filters in an action brought by Center for Environmental Health, that resulted in an industry-wide settlement.
- We have successfully opposed the listing of certain chemicals under Proposition 65.
- Consumer Defense Group v. Shell Oil, et al., California Court of Appeal, Fourth Appellate Dist., Div. 3 Case No. G034935 (2006) (unpublished opinion). Following a successful challenge to the complaint, plaintiff’s appeal resulted in a ruling favorable to defendants — entities undertaking remedial activities at contaminated sites generally cannot be liable under the Proposition 65 discharge prohibition, absent allegation that contaminants were contained before or during remediation and then were knowingly discharged by the remediator.
- Environmental Law Foundation v. Wykle Research Inc., 134 Cal.App.4th 60 (2005). Following a successful motion for summary judgment in the trial court by MLA, the Court of Appeals affirmed and held that a dental amalgam manufacturer discharged its duty under Proposition 65 to provide mercury warnings to dental patients when it provided Proposition 65 safe harbor warnings on dental amalgam package inserts.
- Mateel Environmental Justice Foundation v. Edmund A. Gray Company, 115 Cal.App.4th 8 (2003). This appellate opinion clarified the effect of former California Code of Regulations section 12901 on plaintiff’s burden of proving a Proposition 65 violation.
- In the "discharge-to-drinking-water" area, we represented one of the nation's leading petroleum refiners and distributors in the multi-party and multi-jurisdictional "Gas Station Cases." These cases, brought 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 precedent 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 Proposition 65.
- Our successful defense in the case of As You Sow v. Shell Oil Company is one of the few defense judgments in a contested Proposition 65 case. Rulings by the Superior Court in San Francisco confirmed the principle that Proposition 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 Oil Company. In the course of this representation we successfully petitioned the U.S. Occupational Safety and Health Administration to impose conditions on the incorporation of Proposition 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 Proposition 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.
Advisories
- November 13, 2012In a unanimous opinion, the California Court of Appeal, Third Appellate District upheld a ruling by the Superior Court for Sacramento that enjoined the State’s Office of Environmental Health Hazard Assessment (“OEHHA”) from listing two chemicals – styrene and vinyl acetate – as chemicals “known to the state to cause cancer” for purposes of the Safe Drinking Water & Toxic Enforcement Act (commonly referred to as “Proposition 65”).
- November 7, 2012On November 6, 2012, a majority (53%) of California’s citizens voted against Proposition 37, a ballot initiative which would have required the labeling of certain genetically engineered foods.
- October 23, 2012Frequently Asked Questions about the potentially groundbreaking Proposition 37, a proposed amendment to California's Sherman Food, Drug and Cosmetic Law.