Private Plaintiffs Attempt to Usurp Attorney General’s Role under Proposition 65

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For many years, companies whose consumer products are sold in California have complained about Proposition 65 lawsuits being brought against retailers on the basis of allegations concerning chemicals in those products. Now, for the first time, a state court is poised to consider whether such suits may be barred under certain circumstances.

The issue before the Los Angeles Superior Court is both interesting and novel: Does Proposition 65 prohibit a private plaintiff from bringing an action based on the same products or product category at issue in an action already being diligently prosecuted by the Attorney General? Specifically, the court has been asked to determine whether a “violation” of Proposition 65 is limited to the conduct of

a single “violator,” or whether the term should be interpreted to include the same exposure scenario

posed by the same product or product category.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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