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PROPOSITION 65 DEFENSES

A woman at the office overlooking the city skyline

01

Defendants’ own test results are proving that their product is PRISTINE  

Irrelevant: the violation is complete when a purchase of a violative product is made. Dubious, too, considering an ability to hand-pick a batch for testing, and, in most cases, an in-house or a liason/motivated lab. 

02

Read the brief on this defense distinguishihg the Tri-Umion case. Experienced private enforcers are environmental experts with a lifetime in research of harvesting and manufacturing site(s) and practices, studying the source(s) and history of pollution. They author studies and literature and file only cases with egregious violations, where safe levels exceed from dozens to 100 times; with clear and overwhelming evidentiary support of toxicity resulting from anthropogenic activity. Read more

03

manufacturer/brand holder indemnifies retailers like Amazon, Walmart, Whole Foods, Trader Joe's, Kroger

Intra-defendants' relationships have no bearing on their liability for violations of the California Health and Safety Code. 

04

Sales were minimal 

 

Sales will be assessed based on third party data, subpoenas can be issued to merchant payment providers and POS data aggregators, including Circana/IRI, Nielsen/NIQ. After sales are verified, they will be assesed together with toxicity levels, on a comparative table with past penalties paid by other defendants- think "Sentencing Guidelines."

05

Defendants stopped selling after receiving the NOV 

 

A very welcome defense. The defendant will only be held liable for the period of one year prior to violations until the last product is sold in CA, and the enforcer will monitor those closely. 

06

Defendant is only a distributor, not a manufacturer or a retailer 

 

Distributors are jointly and severally liable with manufacturers and retailers under Proposition 65. 

DEFENSES

 

WHY

 

THEY FAIL

After serving a Notice of Violation of Proposition 65 and filing it with the California Attorney General, an enforcer’s attorney usually receives multiple communications from violators’ counsel, with the most popular defenses listed below.
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