PROPOSITION 65: THE UBIQUITOUS, YET INVISIBLE LITIGATION

Written by Barbara Adams^*

Imagine you are in trial defending a client against a Proposition 65 claim. The allegation is that your client sold a product containing a chemical that the State has found can cause cancer and/or reproductive harm and that your client did not warn potential purchasers of that product. While your client did not place a warning on its product about the presence of the chemical, that warning is only required if the use of the product would expose the average user to a level of the chemical above the "safe harbor" limit set by the relevant state agency. So, the plaintiff has to prove that level of exposure would occur, of course. Right?

Wrong.

All the plaintiff is required to show is that use of the product will "expose" the consumer to one of the relevant chemicals. That is, that the product has a detectable level of the chemical, and no warning was provided prior to purchase of the item in question. The burden then shifts to the defendant to establish that the average use or consumption of the product at issue will not expose the average user to a level of the chemical above the hazard level — a task that at a minimum requires expert testimony that includes lab tests for the level of the chemical; in a nonfood case, human factors analysis to determine how the average user handles or uses the product; in a food case, the average consumption of the product; and a toxicologist, using that evidence, to ascertain the level of exposure the average consumer would experience as a result of the use of the product.