Settlement reached in soft plastic baits case

Proposition 65 warnings would not be included on some products; certain legal claims also resolved.

STATEWIDE—Lawyers affiliated with the American Sportfishing Association, or ASA, reported they negotiated a settlement on potential Proposition 65 claims. The settlement would cover claims filed based on California sales of soft plastic baits, particularly those containing chemicals listed by Prop. 65.

Anyone who is eligible to be a part of the settlement must take action by April 17, which is the hard opt-in date.

“The purpose of the settlement is two-fold: it would extinguish claims made against products covered by the settlement; and, it would eliminate the need for a Proposition 65 warning for certain covered products,” ASA staff said in a released statement.

The Prop. 65 settlement covers four chemicals used in soft plastic lures: DINP, DIDP, DEHP and BBP. The settlement does not cover any other products or chemicals.

Those who want to opt-in to the settlement agreement must agree to receive a Prop. 65 notice (which would allow you to be named in the lawsuit). Being covered within the settlement also means you must have made “a payment based on California sales of soft plastic baits,” according to ASA staff.

Private enforcers can sue businesses under Prop. 65; the sued business must have sold a fishing lure with exposure to one of the four listed chemicals (DINP, DIDP, DEHP and BBP).

The settlement stems from a judgment on the Kingpun Cheng vs. Zoom Bait Co. lawsuit; the judgment was issued on Sept. 11, 2018.

A press release issued the law firm of Steptoe and Johnson explained the court’s settlement.

“Parties to the consent judgment can avoid providing unnecessary warnings under Proposition 65 in two ways,” the Steptoe & Johnson release stated. “A company may avoid warning if it can substantiate that the PVC substrate does not contain more than 50 percent to each of four phthalates, DINP, DIDP, DEHP, or BBP. If the level of a phthalate exceeds 50 percent, the defendant may still avoid warnings but will be required to use a more expensive alternate testing method … to demonstrate that the amount of phthalate migrating out of the lure during the test does not exceed [certain levels].

“The consent judgment also is notable because it contains an opt-in feature, which will allow other companies that manufacturer and/or distribute soft bait lures to use the safe content levels to avoid warning by joining the forthcoming opt-in consent judgment,” the released statement continued.

Contact the ASA attorney for questions on Proposition 65 and its related settlement. The attorney is Jeffrey Margulies, who is part of Norton Rose Fulbright; he can be reached at 213-892-9286 or jeff.margulies@nortonrosefulbright.com.

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