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Learn about California's Proposition 65 and how it affects the product liability for musical instruments and accessories. Get expert advice on compliance and avoidance of violations.
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Product Liability for Musical Instruments and Accessories NAMM Webinar on Prop 65 James M. Goldberg
Why This Webinar? • Because about two dozen companies received a 60-notice of violation of California’s “Proposition 65” • To educate NAMM members on the provisions of this law and offer suggestions on compliance
What is “Proposition 65”? • Safe Drinking Water and Toxic Enforcement Act of 1986 • Approved by voter initiative • Health and Safety Code §25249.5 • Requires State to publish a list of chemicals known to cause cancer or birth defects or other reproductive harm
What Types of Chemicals Are on the List? • More than 750 entries currently • Naturally occurring and synthetics • Additives or ingredients in pesticides, common household products, foods, drugs, dyes, solvents, etc. • Used in manufacturing or construction or byproducts of chemical processes (e.g., automobile exhaust)
Some Examples, Please • A-alpha-C through Zileuton • Aflatoxin, alcohol beverages, aspirin, oral contraceptives, unleaded gasoline • Nickel • Lead and lead compounds
What Must Businesses Do? • Provide a “clear and reasonable” warning before “knowingly and intentionally” exposing a person (e.g., a consumer) to a listed chemical • Warning must (1) clearly make known that chemical is known to cause cancer, etc., and (2) be given in such a way that it will effectively reach a person before exposure
How Do I Reach Consumers? • Signage (e.g., in restaurants) • Product labeling, packaging
Are There Exemptions? • Businesses employing nine or fewer employees • If demonstrate that exposure occurs at a level that poses “no significant risk” • Specific “NSR” levels for 250 products • For reproductive toxicants, no warning if exposure will produce no observable effects at 1,000 times the stated level
How is Prop 65 Enforced? • No criminal penalties • Civil lawsuits • By State Attorney General • By local district attorneys • By private parties • Civil penalties up to $2,500/day for each violation
Who Are the Private Cops? • So-called “Plaintiff’s lawyers” • Defense attorneys call them “bounty hunters” engaging in “drive-by lawsuits”
What Should a Business Do? • Conduct “due diligence” to see if products contain any of the listed chemicals • If not, do nothing • If so, consider an appropriate warning notice • Law is only applicable in California, but hard to keep separate inventories
Suppose I’m One of the Unlucky Two Dozen? • Conduct “due diligence” on listed products • Consult with knowledgeable counsel to plan a response strategy
Prop 65 - • Comments and Q&A • Elizabeth Weaver, Partner • Howrey, LLP
Questions? • Moderated questions and answers • You may also email your questions to MaryL@namm.org • Questions not addressed in the webinar will be answered via follow up email or phone call Thank you for your participation