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More Useful Wine/Prop 65 Settlement Data Comes To Light.

August 4, 2014 | Filed under Featured Articles | Posted by

A number of clients of the Carle, Mackie, Power & Ross law firm forwarded Wine Industry Insight me an email they received.

WII have received permission from the email author, John Mackie to publish it:

A number of producers of alcoholic beverages in California received Notices under Proposition 65 of an intent to sue based on an alleged failure to require retailers to post the required “Prop 65” signs at retail establishments where the producer’s brands are sold. Clients of this firm were among those who received these Notices. In some cases, litigation was actually filed. Various trade organizations for wine, beer, and spirits collaborated to defend against these lawsuits or threatened lawsuits. That effort has been going on for some time and has also involved the California Attorney General. In most cases where our clients received a Notice, we referred them to the relevant trade group, including the Wine Institute.

The cases have now been settled in a manner that is intended to cover the entire alcoholic beverage industry in California. The attached letter   from Wendell Lee of the Wine Institute explains the settlement in more detail. (If anyone would like to read the actual settlement in its entirety, we can provide it upon request.)

Wendell tells us that it is not necessary for a party to be a member of the Wine Institute or the other trade organizations in order to participate (called “Opt-In.”) HOWEVER:

(1) you must be a manufacturer or distributor of alcoholic beverages in the State of California; and

(2) you must have received the Notice of intent to sue regarding posting signs in retail outlets.

Please also note that there is an exemption for producers who employ fewer than ten persons; for such producers, they shall remain exempt from the obligation to provide retailers with Prop 65 signage (so long as they remain under 10 employees).

We know that some of our clients qualify. If you do, please consider the Opt-In and Wendell’s directions in that regard. He requests that he be notified of your election to Opt-In by August 15, 2014. However, see Wendell’s later e-mail to us, as set forth below, in response to our question about clients who would otherwise “qualify” and want to Opt-In but have never received the Notice. This adds a bit of mystery and confusion to this process.

And From Family Winemakers, This:

From Paul Kronenberg, President, Family Winemakers of California
There are a lot of details to sort through.  Take the issue of how to count employees.  Here’s the Prop. 65 regulation that defines employee, which probably governs in this instance.  27 CCR, Division 4, Chapter 1, Article 1, Section 25102 (h):
(h) “Employee” shall have the same meaning as it does in Unemployment Insurance Code Section 621 and in Labor Code Section 3351. Generally, and without limiting the applicability of the definitions in these two statutes, this means that an employee is a person who performs services for remuneration under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed.
In computing whether a person employs ten or fewer employees in his business, all full-time and part-time employees on the date on which the discharge, release or exposure occurs must be counted. Thus, the prohibitions on discharge or release and exposures to certain chemicals will apply to any person who has ten or more full-time or part-time employees on the date in question.

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