Product Liability for Musical Instruments and

AccessoriesNAMM 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