Anyone who lives in or has visited California has seen the Prop 65 warning signs posted in businesses throughout the state. Proposition 65, the California Safe Drinking Water and Toxic Enforcement Act, requires that any person who knowingly and intentionally exposes any individual to specified chemicals above acceptable threshold levels pursuant to Prop 65 must give a clear and reasonable warning to that individual. The law applies to businesses that employ 10 or more people.
The regulation has spawned a cottage industry of organizations and lawyers who frequently and repeatedly bring Prop 65 actions, says partner Lee Brenner and senior associate Ken Kronstadt in their article, “Don’t Despair, There are Defenses to Prop 65 Claims” published in Law360. While most cases settle, perhaps because of the cost of defending or the struggle to find a defense against a complicated law, multiple defenses and exemptions do exist.
From untimely lawsuits and federal preemption, to “safe harbor” and “naturally occurring levels,” there are factual and legal circumstances that may make settlement unpalatable. There are a number of important defenses (and exemptions) about which defendants should be mindful of.
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