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Product Liabilities You Never Anticipated: A California Prop. 65 Executive Briefing. Chris Amantea & Malcolm Weiss May 28, 2008. The Presenters. Chris M. Amantea Malcolm Weiss. California Environmental Practice. Growing and significant California environmental practice

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product liabilities you never anticipated a california prop 65 executive briefing

Product Liabilities You Never Anticipated:A California Prop. 65 Executive Briefing

Chris Amantea & Malcolm WeissMay 28, 2008

the presenters
The Presenters
  • Chris M. Amantea
  • Malcolm Weiss
california environmental practice
California Environmental Practice
  • Growing and significant California environmental practice
  • Covers all areas of California and federal environmental law
  • Over ½ century of environmental law experience—including governmental agency and practical business experience
  • On the “cutting edge” of environmental law trends
california environmental practice1
California Environmental Practice
  • Facility Siting, Expansion and Permitting
  • Global Climate Change
  • Air Quality, Water Quality
  • Hazardous Waste (RCRA)
  • CERCLA (Superfund)
  • Toxic Tort and Class Actions
  • Environmental Due Diligence/Transactions
  • Safe Drinking Water and Toxic Enforcement Act (Proposition 65) and Product Liability Laws
  • Counseling, Regulatory and Litigation
what we will cover today
What We Will Cover Today. . .
  • Product liability laws—an overview
  • Proposition 65
  • Developing a Proposition 65 strategy to minimize liability
  • You received a 60-Day notice, now what?
product liability laws
Product Liability Laws
  • CA Phthalates Law (AB 1108)
  • CA Toxics In Packaging Prevention Act (AB 455)
  • Federal Consumer Product Safety Modernization Act (HR 4040)
  • Recalls/Industry Initiatives
proposition 65 overview
Proposition 65 Overview
  • Avoterinitiative
  • Addresses concerns aboutexposureto substances whichcause cancer or reproductive toxicity
  • Prohibitsdischarging listed chemicals into drinking water sources
  • Prior to exposing individuals, clear & reasonable warnings must be given
proposition 65 overview to whom does it apply
Proposition 65 OverviewTo Whom Does It Apply?
  • Businesses with 10 or more employees
  • That expose individuals to listed chemicalsat miniscule levels
  • Exposures can occur as follows:
    • Consumerproducts’use, manufacture, or sale
    • Environmentaldischarge of listedchemicals
    • Occupationalexposures to listed chemicals
proposition 65 overview who enforces the law
Proposition 65 OverviewWho Enforces The Law?
  • California Attorney General
  • County District Attorneys, and
  • Any person, after issuing a 60-day notice, when no public prosecutor has commenced and is diligently pursuing an action
proposition 65 overview what penalties can be assessed
Proposition 65 OverviewWhat Penalties Can Be Assessed?
  • Civil penalties of up to $2,500 per exposure per day
  • Injunctions may be obtained to prevent threatened or occurring violations
developing a proposition 65 strategy to minimize liability
Developing A Proposition 65 Strategy To Minimize Liability
  • Compliant warnings
  • Product audits
  • Exposure analysis (HRA)
  • Testing frequency and protocols
  • Downstream issues
  • Upstream Issues

WARNING:

This product contains chemicals known to the State of California to cause cancer and birth defects or other reproductive harm.

you received a 60 day notice letter what is it
You Received A 60-Day Notice Letter What Is It?
  • Citizen’s notice of violation
  • Describing
    • Noticing party name
    • The name of the alleged violator(s)
    • When the violation allegedly occurred
    • Each listed chemical involved
    • The route and type of exposure
  • Certificate of Merit
    • Supporting documentation
you received a 60 day notice letter now what
You Received A 60-Day Notice Letter Now What?
  • Plaintiffs are not all equal
  • Industry (joint) defense groups?
  • Engaging counsel
  • Reformulation
  • Considering settlement and terms
  • Recalls
  • Public relations
proposition 65 litigation settle or defend
Proposition 65 LitigationSettle or Defend?
  • Assess your options
  • Is insurance coverage available?
  • Who is liable?
    • Owners, operators, franchisees, manufacturers, etc.
  • Evaluate cost of defending vs. settling and moving on
proposition 65 litigation can i be sued again if i settle
Proposition 65 LitigationCan I Be Sued Again If I Settle?
  • So long as the new suit is not for a new violation, the claim should be dismissed
  • No guarantee -- anyone can sue
  • Our success in preventing follow-on claims has been excellent
proposition 65 strategy overview some things to keep in mind
Proposition 65 Strategy OverviewSome Things To Keep In Mind. . . .
  • 60-day notice means you will be sued
  • Consider your strategy early on
  • Tender to responsible party
    • Defend
    • Settle
  • Early settlement can reduce fees, costs and penalties
call us
Call Us

QUESTIONS?

Malcolm C. Weiss, Esq.

Hunton & Williams LLP

550 S. Hope St., Suite 2000

Los Angeles, CA 90071

(213) 532-2130

mweiss@hunton.com

Chris M. Amantea, Esq.

Hunton & Williams LLP

550 S. Hope St., Suite 2000

Los Angeles, CA 90071

(213) 532-2102

camantea@hunton.com