Advertising Law Tool Kit - Tenth Edition | 2022

Venable / 61 Companies selling products in California, including companies outside of California that ship products into California, should consider the best practices listed below to help avoid litigation and limit their liability: Help Avoid Litigation • Conduct a risk management audit of products to determine the implications of Prop 65 requirements. • Assess and routinely test products to determine whether products contain any chemicals on the Prop 65 List. This includes impurities that are not knowingly added to the product. • If a product contains a listed chemical, determine whether compliance can be achieved by demonstrating that the level of exposure is below safe harbor levels (if any) or by demonstrating that the chemical is naturally occurring (a very difficult standard). If not, provide a compliant warning. Limit Liability • Ensure Prop 65 warnings comply with the new warning requirements that went into effect in August of 2018, including the specific requirements for Internet and catalog warnings. • Monitor trends in Prop 65 enforcement. • Monitor the Prop 65 List for newly listed chemicals. Respond to Notices of Violation • Prop 65 requires plaintiffs to issue a “notice of violation” before filing suit. Engage counsel to respond to and seek to resolve the issues in the notice promptly, as pre-litigation negotiations often yield better settlements (in the form of consent judgments) for alleged violators. • The law allows private persons or organizations to bring actions against alleged violators on behalf of the “general public.” The potential costs for violations of Prop 65 are high – with penalties of up to $2,500 per day, per violation – and plaintiffs are entitled to reimbursement of attorneys’ fees.