Prop 65 Counseling & Litigation

Arent Fox offers industry a highly seasoned team of attorneys skilled in the complexities and nuances of Prop 65 counseling and litigation.

Proposition 65 & Toxic Tort Cases

Arent Fox offers the industry a highly seasoned team of attorneys skilled in the complexities and nuances of California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (“Proposition 65”). Proposition 65 cases may arise as enforcement actions by state authorities but, more frequently, are initiated by plaintiffs’ law firms. Proposition 65 cases raise a number of public and private liability issues as well as civil and criminal law concerns. We have significant experience in managing these matters and handle other types of toxic tort litigation throughout the country.

Our experience includes:

  • Monitoring activity of the California Office of Environmental Health Hazard Assessment ("OEHHA") in adding substances used in cosmetics and household products to its list of chemicals known to the State of California to cause cancer or reproductive toxicity, and advising clients of new labeling or reformulation requirements.
  • Successfully persuading the California Attorney General to reject a 60-day Notice of Violation ("NOV") filed by a private plaintiff alleging that a major national retailer’s hand soaps violated Proposition 65 due to the presence of diethanolamine.
  • Negotiating an agreement on behalf of a major national retailer of personal care products to settle, with minimal damages, allegations by private plaintiff concerning the presence of benzophenone in certain sunscreen products.

California Air Resources Board

Arent Fox also represents clients before the California Air Resources Board (“CARB”), which sets and enforces emission standards for consumer products.

Examples of recent matters we have handled for consumer products companies include:

  • Advising companies concerning the potential impact of volatile organic compound (“VOC”) content regulations on proposed consumer products.
  • Negotiating settlements of CARB charges arising out the alleged distribution of home fragrance products that failed to comply with state limits on VOCs.