The Safe Drinking Water and Toxic Enforcement Act of 1986
Hunton Andrews Kurth LLP represents clients on all aspects of California’s Proposition 65 (Prop 65). For over 30 years, our attorneys have effectively and successfully represented trade groups and businesses, throughout the chain of commerce, on Prop 65 compliance, defense of claims, and rulemaking issues. Our team includes technical expertise in toxicology and public health, allowing us to dig deeply into claims and rulemakings that have scientific underpinnings. We help clients navigate matters alleging product, environmental, and/or workplace exposures as well as alleged non-compliant discharges to groundwater.
Our team develops client-specific compliance strategies to proactively identify potential liabilities and provide robust solutions aligned with our client’s business objectives. With substantive experience in the law, and in close coordination with our client’s needs and goals, our attorneys are prepared to advise companies that receive a Prop 65 Notice of Violation (whether from the Attorney General or a private party) and to swiftly develop efficient Prop 65 defense and resolution strategies.
What is Proposition 65?
California voters approved the Safe Drinking Water and Toxic Enforcement Act in 1986 (Prop 65). It is one of the most stringent chemical regulations in the country, which impacts all consumer products sold, offered for sale, or distributed in California. Its reach is truly global.
Prop 65 typically is enforced by the California Attorney General’s Office or private parties, including self-proclaimed environmental groups. The law requires businesses to provide warning labels on products warning of even low exposures to any of the more than 900 listed chemicals known to the State of California to cause cancer, birth defects, or other reproductive harm. The intent of Prop 65 was to allow Californians to make informed decisions concerning potential chemical exposures. It has, however, built in incentives for private parties to allege claims even where exposures requiring a warning have not occurred (and even where the business may have test reports demonstrating actionable exposures are not occurring).
The Office of Environmental Health Hazard Assessment (OEHHA), a part of the California Environmental Protection Agency (CalEPA), implements (but does not enforce) Prop 65. OEHHA decides whether chemicals meet the requirements for placement on the Prop 65 list and updates this list of chemicals, by law, once a year. OEHHA also determines the regulations governing required warnings.
Hunton Andrews Kurth attorneys have advised clients on Prop 65 issues since the initiative was adopted. We advise industrial, manufacturing, trade groups, and other business clients whose facilities, retail locations, or products have been targeted as a result of the initiative. Our experience includes: