STAGE I
RESEARCH
Public or/and private enforcers conduct a massive body of research into:
Food growing, manufacturing, packaging, storing, refrigerating, distributing, transporting
Consumer goods
OEHHA guidelines and research behind it
Expert opinions
Expert credentials
Experts fields of expertise, works, papers, treatises
Experts court appearance profiles, success/challenges record.
STAGE II
R&D
Public or/and private enforcers conduct a specific research into violators:
Food growing, manufacturing, packaging, storing, refrigerating, distributing, transporting
Harvesting sites and geographies
Environmental profiles of harvesting sites
Environmental profiles of manufacturing, storage, distribution facilities
Manufacturing practices, including deficiencies and best practices
Consumer goods components and manufacturing
Incorporation and mergers and acquisitions history of manufacturers, retailers, licensors, licensees, distributors and wholesalers
Executive officers of corporations—alleged violators of health and safety laws.
STAGE III
BUY & RECORD
An enforcer accumulates sufficient knowledge, that expertise guides him on potential violations of health and safety laws and presence of harmful chemical toxins in foods and consumer products.
Next the enforcers:
Identify areas of potential violations of health and safety laws
Buy hundreds of products from store shelves or online retailers, in a usual consumer chain/manner
Record each step and the chain of custody
Research laboratories, certification documentation, their specialization in different chemicals and products, their scientific staff
Ship products to certified independent laboratories, equipped with qualified experts.
STAGE IV
TESTING
Enforcers work with multiple accredited laboratories and their experts, nationally. They send products to a laboratory specializing in a the chemical to be tested, discuss the methods of testing and verify that the testing method is a standard in the industry and has been examined previously in court proceedings.
Instruct the laboratory on what chemicals to test
Pay for each laboratory analysis of each product
Analyze the results of testing
Discuss the results with experts and an attorney
Retest, repeating steps II and III
Consult an expert on each test result.
Recruit experts to verify and back the enforcer’s position in court.
STAGE V
NOTICE OF VIOLATION
Proposition 65 requires that a 60-day notice of intent to sue be provided to a violator of Cal. Health & Safety Code § 25249.6. To comply with this requirement, enforcers:
Prepare a Certificate of Merit with expert(s) and attorney(s)
File a notice of violation (NOV) with Attorney General of California
Serve the NOV to about 50 district and city attorneys and violators- manufacturers, retailers, distributors, licensors, licensees, wholesalers.
STAGE VI
PRE- LITIGATION
After serving an NOV an enforcer’s attorney usually receives multiple communications from violators’ counsel, with the same, case-after-case, defenses—see enumerated defences here.
Among the common defences are: the chemicals are "naturally occuring" in the products, defendant's own test results are pristine, sales were minimal, manufacturer idemifies retailers or a defendant is only a distributor and not a manufacturer, defendant stopped selling the dangerous product after receiving a Notice of Violation filed with Attorney General's office, etc.
See more about the defences here.
STAGE VII
PRE-LITIGATION SETTLEMENT
After receiving NOV, an alleged violator has 60 days to provide the enforcer with their verified sales numbers and agree in writing to the terms:
Withdraw the product from the market or put a label, warning consumers about the presence of chemical toxins causing cancers and/or reproductive harm in the product, and pay:
Statutory civil penalties
Costs of research & development, laboratory testing, expert(s) fees
Filing and prosecuting the case.
Attorney fees
Read more here.
STAGE VIII
LITIGATION
An enforcer typically files a complaint in court if no signed settlement has transpired on day 70 of NOV.
After filing the case, an enforcer side would run their thorough discovery, uncover and bring to light:
True and up to date sales numbers, for the period from one-year prior to NOV to the date of responding to discovery
Specific information about sourcing
Manufacturing practices and processes.
STAGE IX
RECALL/WARNING
Because of the sheer size of the California market, Cal. Health & Safety Code violations cases, prosecuted in the public interest, have resulted in significant public benefit, including reformulation of hundreds of products to remove toxic chemicals to make them safer; removal of heavily contaminated products containing lead, cadmium, dioxane, from the market in California, and warning consumers of carcinogens and reproductive toxins in foods and consumer products.
In most cases, a violator changes their violative manufacturing practices for the entire US market and implements self-testing- that is how California Proposition 65 benefits all US consumers.
STAGE X
HEALTHIER PRODUCTS/MONITORING
The enforcers not only achieve recalls of the dangerous products from the market, they enforce implementing measures and protocols reducing the amount of chemical toxins in manufacturing practices, improving worker and consumer safety from chemical exposures.
The largest enforcement groups publish comparative results of testing consumer products and foods, to educate the public on chemical toxins in consumer products, and inform them on healthy choices while shopping. See for example our client's research and testing here: Healthy Living Foundation.
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