CALIFORNIA PROPOSITION 65 EXPERIENCE

MICHAEL J. VAN ZANDT, ESQ.

Attorneys at MCQUAID BEDFORD & VAN ZANDT LLP ("MBVZ") have been involved in California's Proposition 65 since its inception.  This paper will first summarize the important features of Proposition 65 and then detail MBVZ's experience with Prop 65 cases.

CALIFORNIA'S SAFE DRINKING WATER AND TOXIC ENFORCEMENT ACT

On November 4, 1986, the voters of California passed an Initiative Measure, Proposition 65, "The Safe Drinking Water and Toxic Enforcement Act of 1986."  The initiative applies to manufacturers, processors, distributors, and retailers who do business in the State of California.  The proponents of Proposition 65 argued that it was needed to address toxic polluters, contaminated drinking water, harm to children and the environment, generally painting Proposition 65 as the panacea of all environmental laws.  The Proposition is divided into warning requirements and discharge prohibitions.

The law requires the identification of certain chemicals which are known to the State of California to cause either birth defects or other reproductive harm or cancer.  Once the chemicals are listed, then the manufacturers, distributors, and retailers are required to comply with the warning and discharge requirements.

Warnings for consumer products must be by conspicuous methods calculated to make it likely a reasonable consumer will read the warning.   The law also prohibits the discharge of listed chemicals into water or upon the surface of the land in such a manner that they pass or could pass into sources of drinking water.  Sources of drinking water are defined as including both surface and groundwater.

The primary enforcer of Proposition 65 is the Office of the Attorney General.  However, the initiative also gives authority to private citizens to bring suit after a 60 day notice requirement.  The private plaintiffs are acting as private attorneys general but the initiative allows these plaintiffs to collect 25% of the fines levied in the case.  This unusual provision has spawned a new breed of plaintiffs, called "plaintiffs for profit."  As a further incentive to these groups, attorneys fees and costs can be awarded.

The first cases brought to enforce Proposition 65 seemed to focus on traditional chemicals and their exposure to individuals.  Early on, mantles from lanterns, commercial paints, typewriter correction fluid and sterilizers got most of the attention.  Cases have been filed which attacked ceramic ware, table ware, crystal decanters, china, chocolate, lead wine bottle covers, fishing tackle, coating products, diesel exhaust and plumbing products.  The Proposition 65 cases tend to be very specialized and require legal advice from law firms well-versed and experienced in the initiative. 

MBVZ CALIFORNIA PROPOSITION 65 EXPERIENCE

MBVZ partners, J. Dennis McQuaid, Michael J. Van Zandt and Neil Bardack have been involved with Proposition 65 cases for many years.  Messrs. McQuaid and Van Zandt were involved in the first Proposition 65 case that was decided by the California Supreme Court, People v. American Standard.  The case was initially brought by the Natural Resource Defense Council and the Environmental Law Foundation.  The California Attorney General took over a portion of the case after the initial notices were sent. These cases involved brass plumbing faucets and an allegation that these faucets leached lead into drinking water.  MBVZ attorneys acted as Coordinating Counsel for a Joint Defense Group, representing over twenty plumbing manufacturing defendants.  Moreover, MBVZ attorneys represented four individual companies in the lawsuit.  After the complaint was filed, successful settlements were reached for the four defendants represented by MBVZ attorneys.  The case proceeded to the California Supreme Court with Messrs. McQuaid and Van Zandt representing a national trade association, the Plumbing Manufacturers Institute.

MBVZ is currently counsel for seven plumbing fixture manufacturers and importers in a case involving plumbing valves and backflow preventers.  The case was brought by As You Sow and is styled As You Sow v. Conbraco Industries, Inc.  It involves allegations that these plumbing products leach lead into drinking water n residences and commercial buildings.  The case proceeded to trial on the issue of whether the test As You Sow indicated it wanted to use to test for lead leachate from valves was an appropriate test under Proposition 65.  Michael J. Van Zandt acted as one of the lead attorneys in the case.  After a seven day trial before the Complex Litigation Division of the San Francisco Superior Court, the judge ruled that the test proffered by As You Sow was not an appropriate test and the judge then dismissed the case.  The case is now on appeal.  This was the first case that proceeded to trial under Proposition 65 that addressed the appropriateness of the testing protocols used to carry the plaintiffs burden and it will have a significant impact on all future Proposition 65 cases. 

Since the first Proposition 65 case, MBVZ has represented faucet manufacturers in two additional rounds of litigation.  These cases were brought by the Natural Resource Defense Council.  Again the allegations involved lead leachate.  In both rounds, MBVZ was able to successfully negotiate favorable terms of settlement.

After being contacted by the American Sportfishing Association concerning allegations of lead exposure from fishing tackle, MBVZ attorneys forged the legal strategy that was used to bring the industry into compliance with Proposition 65.  After notices were sent out by the Mateel Environmental Foundation and a suit was filed by the California Attorney General, MBVZ obtained the dismissal of four companies and negotiated favorable settlements for seven additional companies, establishing a consumer warning program that is fully compliant with Proposition 65.

MBVZ CALIFORNIA PROPOSITION 65 EXPERIENCE cont'd

In an action brought by As You Sow's former attorney, Cliff Chandler, against a fishing tackle manufacturer, MBVZ was able to obtain a dismissal after it enlisted the assistance of the California Attorney General.  The case involved allegations that our client was in violation of a consent judgment that had already been entered into with the California Attorney General.  MBVZ filed a request to dismiss the case and the Attorney General filed a supporting brief.  The plaintiff filed a dismissal with prejudice soon thereafter.

MBVZ has negotiated a settlement with Citizens for a Better Environment over coating material that contained hazardous chemicals used on outdoor furniture where children and adults could be exposed.  The manufacturer agreed to replace its coating materials and to use wood that was certified as environmentally safe. 

MBVZ has provided Proposition 65 advice to trade associations and numerous individual companies, including setting up worker safety programs, developing consumer warning programs, and assisting in reformulation of products to eliminate or reduce the amount of Proposition 65 listed chemicals in the products.