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This blog focuses on California regulatory developments affecting consumer products, and starts with California’s Proposition 65, formally known as The Safe Drinking Water and Toxics Enforcement Act of 1986, Health and Safety Code 25249.5 et seq.  Proposition 65 requires private businesses with 10 or more employees to provide a “clear and reasonable” warning before exposing a person to a Proposition 65 listed chemical.

Target on Consumer Products.  Consumer products have been the primary focus of enforcement actions.  Initial actions were based on products for which there was direct contact with a Proposition 65 chemical such as exposure to lead from lead crystal beverage containers or china glazed with a lead containing glaze.  More recently, the cases involve exposures resulting from contact by inadvertent hand-to-mouth behavior.  These so-called touching cases have involved a wide variety of products such as brass fittings, belts, dog toys, jewelry, house keys, luggage tags, picture frames, purses, shoes, and wallets.

If Proposition 65 simply requires is that businesses provide a warning, why are so many products subject to lawsuits?  There are many reasons.  In many cases, manufacturers and distributors never thought about touching a product as leading to an exposure to a chemical.  Sellers and distributors of products design their products for style and function and may not be aware of that materials used to make their product contain a Proposition 65 chemical.

Pro-Active Management.  Significantly, businesses can take steps to minimize the potential for enforcement action on consumer products.  First, businesses can require their suppliers to disclose whether their product contains a Proposition 65 chemical.  Suppliers should be aware of raw materials in their products and what Proposition 65 chemicals might be present.  Second, businesses may consider requiring their suppliers to submit test reports on their products and possibly engaging in periodic, independent analyses of the product.  Third, businesses should obtain indemnities from their suppliers.

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