WARNING: Prop 65 Can Expose Product Manufacturers to Increased Litigation in California

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California's Proposition 65 ("Prop 65") requires product manufacturers and sellers to provide a "clear and reasonable" warning before knowingly and intentionally exposing anyone in California to a chemical listed by the California Office of Environmental Health Hazard Assessment (OEHHA) as known to cause cancer, birth defects or other reproductive harm. A great deal of controversy and confusion has developed over the years as to what constitutes a "clear and reasonable" warning under Prop 65. As such, Prop 65 contains a safe harbor provision wherein a product manufacturer or seller may protect itself by placing warnings specified in the regulations on its products. If the warning comports with the safe harbor provisions, it is deemed "clear and reasonable."

In May 2016, Stinson Leonard Street reported on the history of Prop 65, along with proposed amendments to it under consideration by the OEHHA. See, <a data-cke-saved-href="http://www.stinson.com/Resources/Insights/2016_Insights/California_s_Proposition_65__History_and_Proposed_Amendments_in_2016.aspx" href="http://www.stinson.com/Resources/Insights/2016_Insights/California_s_Proposition_65__History_and_Proposed_Amendments_in_2016.aspx" target="_blank" title="" california's="" proposition="" 65:="" history="" and="" proposed="" amendments="" in="" 2016."="" "="">"California's Proposition 65: History and Proposed Amendments in 2016."On September 2, 2016, the OEHHA adopted many of the proposed amendments to Prop 65's safe harbor provisions. While the amendments may help clear up some confusion regarding the "clear and reasonable" warning requirements, it is anticipated that the newly adopted changes to Prop 65 may have the effect of increasing litigation, including the notorious "bounty hunter" lawsuits1, against any company that sells products and/or provides services in California.

Warnings on nonfood products must contain a symbol with a black exclamation point in a yellow equilateral triangle with a black outline ("the symbol"):

The warning should also contain the word "WARNING" in all capital letters and bold type ("the warning identification");

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. Attorney Advertising.

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