Bill to Amend Prop 65 Revamped to Target Only 3 Types of Exposure

This week, the California State Assembly’s Committee on the Judiciary voted 10-0 to pass a dramatically revamped version of the proposed legislative amendment to Proposition 65, known as Assembly Bill (“AB”) 227.  The bill was originally written to provide anyone receiving a 60-Day Notice of Violation of Proposition 65 with fourteen days to correct the violation and provide a sworn statement that the violation has been corrected.  A correction within 14 days and sworn statement by the alleged violator would then preclude the person who sent the 60-Day Notice from filing a Proposition 65 lawsuit against the alleged violator of the law.  AB 227 has now undergone a major revision to provide a 14-day correction period for the following three narrow categories of exposures to chemicals known to the State of California to cause cancer and reproductive harm:

• Exposures to alcoholic beverages, or to a chemical known to cause cancer or reproductive harm to the extent the chemical is formed on the alleged violator’s premises by necessary preparation of food or beverages which are sold on the alleged violator’s premises for immediate consumption;
• Exposures to environmental tobacco smoke caused by entry of persons (other than employees) on premises owned or operated by the alleged violator where smoking is permitted at any location on the premises;
• Exposures to chemicals known to cause cancer or reproductive harm in engine exhaust, to the extent the exposure occurs inside a facility owned or operated by the alleged violator and primarily intended for parking noncommercial vehicles.

The revision to AB 227 allows alleged violators protection from Proposition 65 suits if, in addition to correcting the alleged violation arising from one of the three categories of exposure described above, the alleged violator also pays a civil penalty in the amount of $500 per facility or premises, which amount will be adjusted annually to reflect any increases in the cost of living in California.

Individuals and businesses alleged to have violated Proposition 65 by exposing consumers to chemicals from sources other than the three listed above will not be immune from a Proposition 65 action even if they correct the alleged violation within 14 days of receiving a 60-day Notice.

AB 227 proceeds to the Assembly Committee on Appropriations.  In order for AB 227 to become law, it must be approved by a two-thirds vote in each house of the California Legislature, and then be signed by the Governor.

The Chanler Group represents citizen enforcers who, acting in the public interest, commence actions against businesses offering products for sale in California that contain chemicals known to cause cancer or reproductive harm without first providing the health hazard warning required by Proposition 65. Citizen enforcers bringing Proposition 65 actions in the public interest may obtain a Court Judgment imposing civil penalties, an injunction requiring reformulation of products, and/or provision of health hazard warnings. The Chanler Group has represented citizen enforcers of Proposition 65 for more than twenty years.