Proposition 65 Counseling and Defense

Since the passage of Proposition 65 in 1986, Orrick has counseled and represented a variety of companies with Prop. 65 issues. Our clients have included manufacturers, retailers, employers, and trade groups, and we have won victories in actions sponsored by most of the major citizen groups, as well as those initiated by the California Attorney General. Our lawyers take pride in our ability to deal with plaintiffs professionally, yet aggressively, to successfully resolve Prop. 65 disputes. We have extensive experience in a wide variety of issues raised by Prop. 65, including the following:

• exposure analyses and risk level assessment
• preemption by Federal labeling requirements
• preemption of “bounty-hunter” lawsuits by state enforcement actions
• language, size, and placement of warning signs and labels
• air toxics assessments and Prop. 65 warning requirements
• posting warnings for trace amounts of chemicals
• Prop. 65 “audits”
  

Representative Engagements

Orrick lawyers have dealt with virtually all of the major issues raised by Prop. 65. Following are brief descriptions of some of our more notable representations.

• People v. Altaire Pharmaceuticals, Inc. Orrick recently won an important trial victory for Bayer Consumer Health in an action brought by the California Attorney General. In a 31-page Final Statement of Decision, Alameda County Superior Court Judge Ronald M. Sabraw ruled that Bayer had proved that its nasal spray products, marketed under the Neo-Synephrine and NaSal brand names, were in compliance with Prop. 65 when they contained as preservatives two mercury compounds, thimerosal and phenylmercuric acetate. Judge Sabraw ruled that Bayer proved at trial that the average consumer’s exposure to the preservatives was below the Maximum Allowable Dose Levels (“MADLs”) for these compounds. As a result, Bayer was not required to provide Prop. 65 warnings on the products. In winning, Bayer avoided a second phase of the trial at which the Attorney General hoped to subject Bayer to millions of dollars in penalties.
  
  The trial lasted five days, with Bayer represented by Norm Hile and Joe Evall. During the trial, the Orrick team put on expert testimony to establish MADLs for both preservatives and presented exposure assessments showing that the average consumer’s exposure to thimerosal and PMA was below the MADLs. Experts for Bayer testified about the toxicology of thimerosal and PMA as well as a consumer survey of California women that determined how much the “average” consumer uses these products.
  
  This case marks the first time that a Prop. 65 defendant has prevailed by establishing an MADL for a Prop. 65 chemical and also the first time a defendant has defeated the Attorney General in a Prop. 65 case.
• As You Sow v. Revlon. We defended Max Factor in an action involving exposure to toluene in nail polish. We negotiated a settlement with the bounty hunter, As You Sow, that created an industry-wide standard for compliance. We also defended Max Factor on grounds of res judicata in subsequent litigation brought by bounty hunter Toxic Injuries Corporation involving nail polish.
• People of the State of California v. Alva-Amco Pharmacal Cos. We negotiated a favorable settlement for American Home Products in an industry-wide action concerning coal tar levels in shampoo brought by the Attorney General against dandruff shampoo manufacturers.
• People of the State of California v. Warner-Lambert. We represented American Home Products in industry-wide Prop. 65 litigation brought by the Attorney General regarding lead levels in calcium supplements. Our settlement in this litigation established a new industry standard, acceptable to manufacturers of calcium supplements and the state without requiring a warning that would discourage product use.
• ICC v. Van de Kamp. Orrick prosecuted the first case that went to trial under Proposition 65, which dealt with the sufficiency of an 800-number warning system.
• Procter & Gamble. We have represented Procter & Gamble in Prop. 65 disputes concerning ingredients used in cosmetics, shampoo, fingernail polish, laundry detergent, dishwashing detergents, potato chips, water filters, bleach, and OTC products.
• Signature Fruit. We convinced a bounty hunter to withdraw a Proposition 65 notice claiming occupational exposures and environmental exposures from a manufacturing facility.