California Prop 65- Nutritional Supplements

A nutritional supplement client of the firm was concerned about whether lead content in its products violated California Prop 65. The client did not want to be sued under Prop 65 and did not want to put the statement on its labeling: Warning, this product contains a chemical known to the State of California to cause cancer, birth defects and other reproductive harm. We knew the product was safe for the public to consume because it was well within FDA guidelines in all respects. The client asked us to advise it on whether its product complied with Prop 65, which has different standards than those promulgated by FDA.

We conducted product testing to measure the amount of lead in the product. The commercial laboratory where we commissioned the test is located outside California and was not advised of our client's identity. Because our law firm conducted the testing, the attorney work product and attorney-client privilege doctrines allow the client and our firm to keep the results secret. Although the product did not violate Prop 65, we advised the client that the margin by which the product avoided violating Prop 65 was too small for the client to consider litigation proof. We advised the client that amount of lead in any food ingredient varies by where it is grown, time of harvest and other factors that we identified. Based on our advice, the client reformulated its product to lessen its Prop 65 risk.

Our client continues to sell its product without a Prop 65 warning and knows that it is safe from a Prop 65 suit.


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