Environmental non-governmental organizations (NGOs) are pursuing litigation against EPA to force companies that have never intentionally used asbestos in a product to file reports linking their products to asbestos. Manufacturing and chemical companies should keep an eye on Asbestos Disease Awareness Organization v. Wheeler – currently pending in California federal court – where the NGOs seek to dramatically increase companies’ obligations to disclose that their products contain asbestos – even where it is just present as an impurity.
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Over the past 10 years, the number of private Proposition 65 actions against businesses have nearly quadrupled from 604 in 2009 to 2,364 in 2018. Additional Prop 65 regulations on “safe harbor” warnings and online retailers took effect last August, clarifying the duties of online retailers regarding warnings, which may have caused a decrease in new Prop 65 actions against online retailers.

In light of the new rules and litigation trends, we examine which products are likely to face litigation and offer two ways companies might avoid liability, including by (1) considering the use of “safe harbor” warnings and (2) staying up to date with Prop 65 litigation and the regulations promulgated by the California Office of Environmental Health Hazard Assessment’s (OEHHA) regulations.
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Earlier this year, the U.S. Supreme Court decided Air & Liquid Systems Corp., et al. v. Devries, 139 S. Ct. 986 (2019), a maritime tort law case in which plaintiffs alleged that asbestos exposure during their Navy service caused them to develop cancer. The Supreme Court held that, in the maritime context, a manufacturer has a duty to warn not only of the manufacturer’s own products, but also of third-party products that are later added to the manufacturer’s product.
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Long-anticipated changes to California’s Proposition 65 warning requirements took effect on August 30, 2018, through amendments and new rules issued by the California Office of Environmental Health Hazard Assessment. Among other changes, the new rules now (1) require businesses to provide California consumers with product warnings at the time of purchase, including at the time of online purchases; and (2) change the text of the warnings that businesses may use to qualify for “safe harbor” protections. The new warning requirements apply only to products manufactured after August 30, 2018.
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The Consumer Product Safety Commission (CPSC) issued a final rule in October prohibiting the manufacture for sale, offer for sale, distribution in commerce, or importation of toys and child care products containing more than 0.1 percent of five phthalate chemicals. Phthalates make plastics soft and pliable, and are contained in many toys and other products intended for young children. The rule will take effect on April 25, 2018.

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For the past several months, Monsanto has been in court challenging California’s decision to add the chemical glyphosate—the active ingredient in its herbicide Roundup—to the Proposition 65 list. It recently faced a setback when the California Supreme Court rejected Monsanto’s request to stay a lower court’s decision to include glyphosate among the 960 chemicals on the list.  California’s Office of Environmental Health Hazard Assessment (OEHHA) wasted no time after the decision and added glyphosate to the list on July 7, 2017.
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We’ve been following a series of cases filed against Johnson & Johnson by plaintiffs alleging that using talc caused ovarian cancer.

Since 2009, over 2000 cases have been filed, mostly in Missouri, New Jersey, and California. Missouri has seen four trials: the first three resulted in plaintiffs’ verdicts, but the fourth and most recent resulted in a verdict for J&J.

Often in mass tort litigation, courts allow the parties to have a series of “bellwether trials” to show what is likely to happen in future trials. Rather than preparing to try all cases in a mass tort litigation, the parties can try fewer cases that involve the most contested issues. In Missouri, the bellwether trial plaintiffs are chosen by counsel, with each side taking a turn to select the next plaintiff.
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Monsanto has, at least temporarily, lost its fight to avoid a Prop 65 warning label on its products containing glyphosate, a chemical used in the popular herbicide Roundup. On January 27, 2017, a California judge tentatively dismissed Monsanto’s claims that the State of California unconstitutionally turned to an unelected, European organization to decide whether glyphosate posed a cancer risk.
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