California Court of Appeals Clarifies Proposition 65 Liability Requirements | payne and fears

The California Court of Appeals recently provided much-needed clarification regarding the application of Proposition 65, which prohibits companies from knowingly and intentionally exposing individuals to certain chemicals without first providing written warning. In Lee vs., Inc.., 76 cal. App. 5th 200 (March 2022), the court addressed two key issues: (1) whether implied knowledge of hazardous chemicals and potential exposure is sufficient under the law, or whether actual knowledge is required; and (2) what level of specificity is required in a Proposition 65 violation notice.

Lee’s decision is important for every business that sells consumer products because the Proposition 65 obligations apply “to any retailer, manufacturer, producer, packager, importer, supplier, or distributor of the product.” Lee, 76 Cal. App 5th at 231. A company found guilty of violating Proposition 65 can be fined up to $2,500 per violation per day, which can quickly add up, especially if the violator sells multiple products criminalized on a regular/daily basis.

The Basic Framework of Proposition 65

Proposition 65 generally requires that “[n]o person doing business [] knowingly and intentionally exposing any individual to a chemical known to the State to cause cancer or reproductive toxicity without first giving clear and reasonable warning to that individual. Knowing and intentional exposure is not actionable if the person (in this context, the seller of consumer products) first provides a written Proposition 65 warning, alerting the consumer to the presence of the chemical in the product. Private plaintiffs may sue for alleged violations of Proposition 65, but must first serve notice of the Proposition 65 violation on the alleged violator and the California Attorney General at least 60 days before filing a complaint, in order to give the government the possibility to pursue the action. . If the Attorney General does not prosecute within that 60 day period, the private plaintiff may do so. (For more information on Prop 65, see our previous article, “A Small Business Guide to Prop 65”).

Lee vs. Amazon

In Leethe plaintiff sought to hold Amazon liable for selling skin-lightening creams — allegedly containing mercury — without the proper Proposition 65 warnings. The case addresses two issues important to California businesses.

Proposition 65 only requires constructive advice

Before the Lee decision, the issue was whether the phrase “knowingly and intentionally” requires actual knowledge of the presence of hazardous chemicals and the potential for exposure or whether implied knowledge is sufficient. “Constructive” knowledge is generally defined as “the knowledge that a person exercising reasonable care or diligence should have”. Lee, 76 Cal. App. 5th at 228. The Lee The court found that implied knowledge alone is sufficient to trigger a seller’s obligation under Proposition 65 because requiring anything more would cause companies to deliberately avoid information alerting them to the presence of products. hazardous chemicals and potential exposure.

A Notice of Proposition 65 Violation Must Only Identify the Product Category

The court also provided much-needed guidance on the specificity required in a Proposition 65 notice of infringement. Proposition 65 requires that a pre-litigation notice of infringement be served on the alleged infringer identifying the allegedly infringing product “with sufficient particularity” to inform the recipient of the nature of the items allegedly sold. The California Environmental Protection Agency’s Environmental Health Risk Assessment Office had previously indicated that it would be sufficient to identify the category of products involved, such as “spray paint”, “wax car” or “paint thinner”. the Lee The court relied on these indications to conclude that the plaintiff’s opinion – identifying the broad category of “skin lightening creams” – was sufficiently precise, especially since it also identified, although under a name different, at least one allegedly incriminated product.

Lessons learned

Retailers, manufacturers, producers, packagers, importers, distributors and sellers of consumer products may be sued in civil court and subject to penalties under Proposition 65, even if they had only constructive knowledge that they were exposing an individual to certain chemicals. Real knowledge is not required. Companies should ensure that they learn about the chemical compositions and intended uses of the products they sell, manufacture, produce, package, import or otherwise distribute to ensure compliance with Proposition 65.

Upon receipt of a Proposition 65 violation notice that describes even one class of allegedly offensive products, companies should carefully review all products that fall within that description to ensure they are compliant. to Proposition 65. Companies should act quickly upon receipt of a notice of violation to limit ongoing penalties.