Chemicals + Proposition 65

Represented the nation’s largest specialty retailer of hardwood flooring, in over 130 class action cases in 28 states, a U.S. Consumer Product Safety Commission investigation, a California Air Resources Board enforcement action, and several state attorney general investigations. We successfully defended Lumber Liquidators in a Proposition 65 trial.

Defended more than 30 companies, including most major cosmetic makers, in a suit alleging that titanium dioxide, a key ingredient commonly used in cosmetics and sunscreens, causes a risk of cancer. Our motion for summary judgment was granted in July 2015. Plaintiff’s expert admitted that he could not specify which TiO2-containing products might result in exposure, and all he could say was that it was more likely than not that some products would require a cancer warning. The court agreed with our argument that such expert opinion does not provide a “credible factual basis” for going to trial. Plaintiff has agreed not to pursue an appeal of the judgment. The trial court sustained defendants’ demurrer on several grounds, including that the plaintiff’s failure to obtain evidence of an actual violation of Proposition 65 before serving its mandatory pre-suit notice rendered its notice inadequate and its complaint invalid. The California Court of Appeal agreed, affirming the judgment in February 2014.

Scored trial and appellate victories for Del Monte, Dole, Gerber, Smucker’s, Welch’s, and 10 other companies in a case brought by the Environmental Law Foundation and Baron & Budd class action firm. Plaintiff argued that the companies’ baby food, fruit juice, and packaged fruit products must carry cancer and birth defect warnings because they contained trace levels of lead, notwithstanding the FDA’s findings that they were safe and posed no unacceptable health risk. The trial judge and a unanimous panel of the California Court of Appeal rejected arguments that California’s Proposition 65 law required warnings on these products and rejected an enforcement policy long advanced by the California Attorney General and numerous plaintiffs’ groups that falsely assumed that every type of food is consumed each and every single day of the year. This decision, considered to be one of the most significant in Proposition 65’s 25-year history, opens the doors to companies that wish to use expert testimony based on actual exposure data to defend themselves in Proposition 65 and consumer class action cases. (Cal. Superior Court, Alameda County, upheld by the First Appellate District Court)

Represent Starbucks Corporation, The J.M. Smucker Company, The Kraft Heinz Company, Nestlé USA, Inc., Keurig Dr Pepper, Inc., and 50 other coffee companies against a Proposition 65 bounty hunter. The complaint claims that these companies—and the retailers who sell their products—are required under Prop 65 to provide cancer warnings on coffee based on the chemical acrylamide, which is created when coffee beans are roasted. MoFo secured a summary judgement in August 2020, effectively ending a 10-year litigation battle involving 46 days of trial in a phased trial.

Won a significant ruling from the California Court of Appeal for our two national trade association clients: the American Meat Institute (AMI) and the National Meat Association (NMA). When well-known Proposition 65 plaintiff Whitney Leeman threatened to sue numerous meat producers and retailers for their alleged failure to put Proposition 65 cancer and birth defect warnings on meat sold in California, the AMI and NMA filed a declaratory relief action against him, seeking a judicial declaration that federal law preempts the application of Proposition 65 to meat regulated by the USDA.

On behalf of our clients, we won summary judgment in a Proposition 65 suit filed against SmithKline, Johnson & Johnson, and 15 other manufacturers, marketers, and retailers of Nicoderm CQ, Nicorette, and Nicotrol, smoking cessation products used to help people quit smoking. The lawsuit alleged that the pregnancy warning language on the products did not satisfy Proposition 65’s requirements. The California Lawyer General intervened on behalf of the plaintiff, but the California Supreme Court unanimously ruled in favor of our clients. The Supreme Court’s decision was the first favoring a defendant’s position in Proposition 65 action, the first holding that Proposition 65 could be and was preempted by federal law, and the first ruling that the state could not defeat preemption by requiring off-label advertising.