California Attorney General Challenges Evidence of Exposure in a Proposition 65 Case

The California Attorney General issued a letter on April 4, 2012 to a prominent plaintiff’s attorney requesting that the attorney withdraw its 60-day notice concerning alleged violation of Proposition 65 based on alleged exposure to di-ethylhexyl phthalate (“DEHP”).  The Attorney General contends that the plaintiff’s expert relied erroneously on a report that the Attorney General commissioned to look at potential exposures to phthalates in children’s products.  The report expressly stated that it used conservative estimates and should not be used for risk assessment purposes.  Because the plaintiff’s expert relied on that study, the Attorney General concluded that the plaintiff had not demonstrated sufficient evidence of an exposure for which a warning is required under Proposition 65.