Proposition 65

Hanson Bridgett has significant experience handling Proposition 65 matters. Our attorneys have represented clients in Proposition 65 cases since the Proposition’s inception in 1986. We assist clients with litigation, counseling, and settlement negotiations, and represent manufacturers, distributors, retailers, and trade associations in a wide range of industries both inside and outside California.

We have handled some of the most significant Proposition 65 cases in California and have been successful both at trial and on appeal. We bring experience and zealous advocacy to bear on our clients’ Proposition 65 litigation needs and develop defense strategies that achieve our clients’ business and litigation objectives. In addition, we pride ourselves on our ability to resolve cases without resorting to litigation.

California’s Safe Drinking Water and Toxic Enforcement Act (Proposition 65)

Proposition 65 requires manufacturers, processors, distributors, and retailers that do business in the State of California to comply with specific warning requirements and discharge prohibitions. The standards for establishing a violation are unique, and consequently, require legal advice from attorneys well-versed and experienced in the Proposition. Our attorneys have extensive experience defending Proposition 65 cases and keep up-to-date on the latest legal developments, including proposed regulatory charges with the potential to affect anyone who does business or sells products in California.

Proposition 65 also contains an unusual provision that allows private citizen groups to collect a portion of the fines levied in each case, as well as attorneys’ fees and costs. Our attorneys have defended businesses against dozens of cases brought by these private “bounty hunters,” as well as cases brought by the California Attorney General.

Our firm has provided Proposition 65 representation to companies in a wide range of industries, including:

• Apparel
• Auto parts and supplies
• Consumer products
• Cosmetics and personal care products
• Electronics
• Food manufacturing and distribution
• Jewelry and watches
• Outdoor power equipment
• Plumbing products
• Property management
• Sporting goods

Highlights of Prop 65 Experience

• Acted as coordinating counsel in the first Proposition 65 case decided by the California Supreme Court, People v. American Standard, Inc., for a Joint Defense Group of 23 faucet manufacturers and importers. Our attorneys represented the joint defense group, as well as six separate plumbing manufacturers and importers in the defense of claims that their brass or bronze plumbing products leached lead into sources of drinking water. The case proceeded to the California Supreme Court with Hanson Bridgett attorneys representing a national trade association, the Plumbing Manufacturers Institute, as amicus curiae. We successfully resolved the case on behalf of our clients prior to appeal. In two additional rounds of litigation, we successfully negotiated settlements for our clients. These cases were brought by the Natural Resource Defense Council.
• Successfully defended seven plumbing fixture manufacturers and importers in the first case under Proposition 65 that addressed the testing protocols used to carry the plaintiff’s burden. The case was tried on the issue of whether the plaintiff’s methodology to test for lead leachate from valves was an appropriate test under Proposition 65. The trial court ruled that the test was not appropriate and dismissed the case with prejudice, a ruling that was upheld on appeal (As You Sow v. Industries, Inc., 135 Cal. App. 4th 431 (2005)).
• Successfully forged the legal strategy that was used to bring the American sportfishing industry into compliance with Proposition 65. We represented the American Sportfishing Association defending allegations of lead exposure from fishing tackle. We obtained the dismissal of four companies and negotiated favorable settlements for seven additional companies, establishing a consumer warning program that is fully compliant with Proposition 65.
• Defended a fishing tackle manufacturer in an action brought by a private plaintiff. The case involved allegations that the manufacturer was in violation of a consent judgment that had been entered into with the California Attorney General. After we enlisted the assistance of the California Attorney General in support of the client’s position, the plaintiff filed a dismissal of the action with prejudice.
• Participated as amici curiae counsel on behalf of several plumbing manufacturers in Mateel Environmental Justice Foundation v. Edmund A. Gray Co. This case involved appropriate test methodology under Proposition 65 and the admissibility of the California Lead and Copper Rule.
• Negotiated a settlement with Citizens for a Better Environment in a matter involving coating material that contained hazardous chemicals used on outdoor furniture. The manufacturer agreed to replace its coating materials and to use wood that was certified as environmentally safe.
• Counseled trade associations and numerous individual companies setting up worker safety programs, developing consumer warning programs, and assisting in reformulation of products to eliminate or reduce the amount of Proposition 65 listed chemicals in the products.
• Represented cosmetics company in settlement of private litigation involving shampoo and liquid soap products. The settlement allowed the company to resolve the litigation without the expenditure of significant resources based on the company’s commitment to reformulate its products in a manner consistent with its sustainable business practices.
• Represented a number of major ceramic ware manufacturers in People v. Josiah Wedgwood & Sons. The case involved allegations of lead leaching from the manufacturer’s products.
• Represented electronics manufacturer in settlement of private party litigation. The settlement allowed the company to resolve the Proposition 65 litigation based on compliance with the EU’S RoHS directive, allowing the company to implement uniform global lead-free product standards.

Key Contacts

Merton Howard

Partner

San Francisco, CA

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