In a recent trial in Los Angeles Superior Court in the matter AFS Enterprises, LLC, v. Reckitt Benckiser, PLC, Los Angeles Superior Court Case No. BC539678, the plaintiff brought a single claim under Proposition 65 (Safe Drinking Water and Toxic Enforcement Act of 1986, California Health and Safety Code sections 25249.1 et seq.) against the makers of Brasso, a brass polish, arguing that the manufacturer was obligated to provide a Proposition 65 warning for the product.  Proposition 65 requires manufacturers and retailers to provide warnings for products sold to California consumers if the products expose consumers to certain chemicals including lead.  Here, the plaintiff’s argument was unique.  Although Brasso itself does not contain lead, the plaintiff argued that a warning was nevertheless required because the polish, when used on certain brass surfaces, releases lead. The manufacturer argued that it should be exempt from the warning requirement because the amount of lead customers are exposed to when using the polish does not exceed the “Maximum Allowable Dose Level.”  The court, after weighing testimony of the various experts at trial, issued a Statement of Decision on May 12, 2016 wherein the court ultimately agreed that the manufacturer is not required to provide a Proposition 65 warning.
Continue Reading Los Angeles Superior Court Issues Important Defense Verdict In Unique Proposition 65 Trial Against Brass-Polish Manufacturer

Many consumer-facing businesses have learned to identify high-risk Prop 65 targets:  soft, flexible plastics; faux and colored leathers; and any kind of brass or metal that may contain lead or other heavy metals.  But businesses need to take action to avoid Prop 65 liability based on a new culprit: bisphenol-A (BPA) that may be lurking in your cash register receipts and other thermal papers. 
Continue Reading A Proposition 65 Violation May Be Lurking in Your Cash Register Receipt

By Meredith Jones-McKeown

The chemical commonly known as “TDCPP” or “Tris” [Tris(1,2-dichloro-2-proply) phosphate)] is commonly used as a flame retardant in home furnishings (couches, chairs, pillows, and ottomans) as well as automotive products (seat padding, overhead liners, foams, and infant car seats). In October 2011, California’s Office of Environmental Health Hazard Assessment (OEHHA) listed TDCPP as a chemical on Proposition 65 list of chemicals.Continue Reading Flame Retardant Commonly Used in Furniture Added to Proposition 65 Chemical List

By Heather Plocky

In January, the Attorney General released a guidance document that details what the state will and will not approve in future private Proposition 65 lawsuit settlements[1]. This guidance provides clarity to both plaintiffs and businesses and is intended to limit the scope of any “public interest release” that plaintiffs can offer.Continue Reading Proposition 65 Private Party Settlement Guidance Provides Clarity and a Limitation on Releases in the Public Interest

In Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America, et al., 129 Cal. App. 4th 540 (2005), the California Court of Appeal (2nd District) reviewed and rejected as invalid certain notices served by plaintiff Consumer Advocacy Group (CAG) on numerous hotels and retail establishments under Proposition 65. The court accordingly upheld the trial court’s dismissal of CAG’s claims against those defendants upon whom CAG served invalid notices.
Continue Reading California Court of Appeal Upholds Dismissal of Claims Based on Overbroad Prop 65 Notices