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
[email protected]
• Questions not addressed in the
webinar will be answered via follow
up email or phone call
Thank you for your participation