California Proposition 65



California’s Proposition 65 ("Prop 65")—California’s Safe Drinking Water and Toxic Enforcement Act—requires businesses in California to disclose known toxic chemicals in their products. Manufacturers, retailers, employers, and trade groups have had to assess, examine, and mitigate risks with respect to chemical listings ever since the law’s enactment in 1986.

Nixon Peabody’s attorneys have provided compliance- and enforcement-related services to a variety of companies since the inception of Prop 65. We help clients evaluate their obligation for compliance and limit their exposure to the law. If we advise that a product needs a chemical warning, we provide guidance to clients through every step of the compliance process.

In addition to compliance counseling, our practice focuses on litigation, including the defense of claims and lawsuits alleging violations of Prop 65. For clients facing an enforcement action, we offer experience in negotiating resolutions and, if necessary, implementing effective defense strategies in litigation. Our Proposition 65 knowledge, combined with the firm’s wide-ranging litigation experience with environmental, consumer product, toxic tort, and class action claims, put clients in the best position for a successful outcome.

Our Proposition 65 experience

  • Counseled and litigated numerous matters under Prop 65 (California’s Safe Drinking Water and Toxic Enforcement Act)
  • Representation of a full range of business from Fortune 500 companies through small manufacturers and importers just above the threshold for involvement in Proposition 65 claims
  • Negotiated settlements with environmental advocacy groups and California’s Attorney General
  • Defended petroleum-industry, bulk materials marketer in RCRA, CWA, CAA, and Prop 65 litigations
  • Represent a national chain in Prop 65 litigation regarding second-hand tobacco smoke and diesel exhaust
  • Defense and counseling in numerous Prop 65 matters brought by both private litigants and the State of California involving foods, dietary supplements, and a variety of consumer products, as well as cases involving environmental exposures and alleged discharges into sources of drinking water. Consumer products include:
  • Seafood
  • Vinegar
  • Potato chips and snack food
  • Beauty products and cosmetic bags
  • Glassware
  • Keys
  • Jewelry
  • Children’s accessories
  • Coffee
  • Vitamins

Chemicals we have dealt with under Prop 65 include acrylamide, lead, arsenic, mercury, toluene, benzene, 1,4-dioxane, formaldehyde, and phthalates.

Representative Publications/Presentations:

  • “Labeling Hazardous Chemicals: CA’s Proposition 65 Requirements on Your Compliance Obligations,” BLR Webinar, April 2018
  • “How not to overreact: Prop 65 updates and other chemical regulations,” Nixon Peabody Annual MCLE Seminar, San Francisco, January 2018
  • “Prop 65: The Wild Wild West—The Latest Updates from California and Beyond,” American Conference Institute (ACI) Toxic Tort & Environmental Litigation Conference, Chicago, IL., June 2017
  • “California Proposition 65 Trends and Hazardous Waste Enforcement,” ORCHSE Western Occupational Safety & Health Group, Sonoma, CA, March 2, 2016
  • “Environmental Hazard Compliance in Sale of Goods: California’s Prop 65 and Safer Consumer Products Act,” Strafford live CLE webinar, January 2016
  • “Take the Warning: Why and How To Be Prop 65 Compliant,” ORCHSE Western Occupational Safety & Health Group, Newport Beach, CA, May 20, 2015
  • “Children’s Products: The CPSIA, CA’s Phthalate Regulation, and Proposition 65: Living in Harmony?” Law Journal Newsletters, Products Liability, Law & Strategy, Volume 29, Number 4, November 2009 (L. Michals and A. Epand).
  • Webinar: “Recent Developments in the Consumer Product Safety Improvement Act, California’s Proposition 65, and Recent Phthalate Regulations: Not just for kids anymore.” 2009 (C. Collins).
  • “Proposition 65: Acrylamide in Foods,” SNAXPO 2003, International Snack Food Association National Meeting, San Francisco, CA, 2003
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