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

California’s Safe Drinking Water and Toxic Enforcement Act (commonly known as Proposition 65) casts a wide net as one of the most comprehensive statues in the US for addressing the presence of chemicals in a myriad of products.  Companies that manufacture, sell, or distribute products in California containing one or more chemicals on the list of regulated chemicals known to the state of California to cause cancer or reproductive toxicity (known as the Proposition 65 List) may be required to provide a warning to consumers and others that the products contain a chemical known to the state of California to cause cancer, birth defects, or reproductive harm.  The Proposition 65 list has grown to include more than 850 chemicals, and the risks of failing to comply can be significant, from fines totaling $2,500 per day for each violation, to litigation – brought under the so-called “bounty hunter” provision of Proposition 65 – that allows private plaintiffs to bring actions against alleged violators on behalf of the general public.

With lawyers and specialists with advanced degrees in chemistry, engineering, and biology who understand the nuances of dealing with scientific and technical issues in the regulatory arena, and experienced litigators, some of whom are based in California, who understand how to craft and execute an appropriate compliance and/or defense strategy, Steptoe’s environmental team can help companies minimize potential violations of Proposition 65, or, if litigation ensues, mount an effective defense against the claims.   

Our team is international in scope, and with lawyers based in the US and the EU, we are ideally qualified to counsel clients on the potential interaction of Proposition 65 with various state, federal, and international environmental regulatory schemes, such as California’s Safer Consumer Products Law (Green Chemistry Initiative), Europe’s Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) and the US Toxic Substances Control Act (TSCA), among others.  We work with our clients to create the best possible regulatory landscape for them, minimize the potential for challenges, and, should an enforcement action become inevitable, provide a vigorous defense.