Editor’s Note: Since our original post, there have been two significant changes:

• In 2017, the California Legislature amended the certificate of merit requirements. The amendments require the Attorney General to notify a private enforcer and the alleged violator if the AG finds no merit to an action.  The amendments also make the basis for the certificate of merit discoverable in litigation (to the extent not otherwise privileged).
• The 2016 revised warning regulation created the “five business day exemption” for retailers. The five business day period is triggered by “actual knowledge,” which presumably is established by the 60-day

Editor’s Note: Not much has changed since our original post regarding civil penalties. Unfortunately, Prop 65 enforcers are still out attempting to collect vast amounts of civil penalties (and attorney’s fees) in private enforcement actions.

The obvious concern for many companies facing potential exposure for a Prop 65 violation is what is this going to cost me? The short answer: a lot. The potential for high civil penalties is daunting to many companies, a fact of which private litigants are well aware and bank on to incentivize quick settlements.

Penalty amount

Prop 65 authorizes monetary penalties of up to $2,500 … Continue Reading

Editor’s Note: This post has been updated to reflect 2018 revisions to the Prop 65 regulations, which for the first time allocated responsibility for compliance within the supply chain. These revisions place the primary responsibility for compliance on manufacturers, distributors, and importers, while limiting the circumstances in which retail sellers are responsible for providing consumer product warnings.

To the average person in California, if they know anything about Proposition 65 at all, it is usually because they have a seen a warning sign in a bar or at a store. In most instances, after seeing the sign, they likely kept … Continue Reading

It’s been about six months since the new Prop 65 regulations allocated the primary responsibility for providing warnings to suppliers, manufacturers, distributors, and importers, while limiting retailers’ responsibility to limited, specified circumstances. Many wondered what impact these new regulations would have on the enforcement of Prop 65 against retailers. Six months in, the answer still isn’t clear.… Continue Reading

On August 30, 2016, OEHHA’s long-awaited amendments to the Proposition 65 clear and reasonable warning regulations became final.  The amendments bring two major changes: (1) an allocation of responsibility for providing warnings between retailers and suppliers; and (2) revisions to the safe harbor warning requirements, including warning content and methods of transmission.

Allocation of responsibility

Under the existing Proposition 65 regulations, any party in the supply chain could be held liable for failure to provide a warning.  The revised regulations allocate responsibility for warnings primarily to manufacturers, distributors, and importers (together, suppliers), with retailers responsible in specified circumstances.

Suppliers … Continue Reading

Following the California Office of Environmental Health Hazard Assessment’s proposed regulations for temporary point-of-sale warnings for BPA exposures from canned and bottled foods and beverages, this week OEHHA finalized the Maximum Allowable Dose Level for BPA of 3 micrograms per day from dermal exposure from solid materials. The MADL will go into effect on October 1, 2016.

Once in effect, this will be the rate of exposure at which a warning will be required for dermal exposure to BPA.

Now that the first BPA 60-day notice of violation is out, it remains to be seen whether this seemingly low MADL … Continue Reading

Continuing a flurry of activity this year to reform Proposition 65 in California, the Office of the Attorney General is proposing amendments to the Proposition 65 regulations that would affect settlement terms, penalty amounts, and attorneys’ fees in civil actions filed by private persons in the public interest. For a more detailed discussion of Proposition 65 settlements in private enforcement actions, please see our prior post on this topic.

Per the Initial Statement of Reasons, this rulemaking is intended to:

• ensure that OEHHA gets the civil penalties specified in Proposition 65,
• limit the ability of private plaintiffs to