Bill to Rein In California’s Proposition 65 Introduced

February 7, 2013


A bill was recently introduced in the California State Assembly aimed at providing relief from lawsuits brought under the California Safe Drinking Water and Toxic Enforcement Act (“Act”), also known as Proposition 65. The proposal would provide a 14-day period after receipt of a pre-litigation notice for the recipient to voluntarily cure the alleged violation and avoid litigation.

Proposition 65 prohibits businesses from knowingly and intentionally exposing anyone to a chemical known to the state to cause cancer or reproductive toxicity without first giving a specified warning, or from knowingly discharging or releasing such a chemical into water or any source of drinking water. The Act imposes civil penalties of up to $2,500 per day for each violation, and provides for enforcement by either government prosecutors or by any person acting in the public interest. Currently, there are more than 800 cancer- or reproductive harm-causing chemicals on California’s list.

Plaintiffs, who are most often private enforcers Proposition 65, often utilize the “failure to warn” provisions of Proposition 65 to bring civil lawsuits against businesses and manufacturers. Such lawsuits rarely go to trial. Nearly all result in settlement, with businesses agreeing to pay penalties to the private plaintiff and the State of California, as well as paying the plaintiff’s attorney’s fees. Most settlements include a requirement that the specified warning be provided or, in some cases, that the product in question be reformulated to remove or reduce the amount of listed chemicals in the product.

This bill would allow a person receiving a notice alleging a violation of the warning requirements of Proposition 65 to correct the violation within 14 days after receiving the notice. The person would then have to make a demonstration to the Attorney General, the city attorney, or the district attorney in whose jurisdiction the notice was filed that the violation has been corrected. Details as to how such a demonstration would be made or approved are not included in the legislation. No lawsuit could be filed if the Attorney General, the city attorney, or the district attorney concurs that the violation has been corrected.

News reports suggest that the proposal grew out of protests from restaurateurs who have been increasingly targeted by private enforcers for failing to post warnings regarding the consumption of alcoholic beverages on their premises. It remains to be seen how the legislature will respond, given the competing environmental and business interests involved.

A complete copy of the bill can be found at http://www.leginfo.ca.gov/pub/13-14/bill/asm/ab_0201-0250/ab_227_bill_20130204_introduced.htm.

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