Proposition 65 Amendment Passes California Assembly, Moves to Senate

Assembly Bill 227, an amendment to California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (commonly known as Proposition 65), was passed by the California Assembly last Friday and is now headed for the California Senate.  If the bill passes the Senate and Governor Edmund G. (“Jerry”) Brown signs it, it will become law.  The bill was introduced by Assembly member Mike Gatto (D-Los Angeles) in February 2013.

Proposition 65 requires companies that offer products for sale in California to provide health hazard warnings if those products contain chemicals known to the State to cause cancer or reproductive harm.  California’s Office of Environmental Health Hazard Assessment (OEHHA) is the lead agency in implementing Proposition 65 and maintains a list of over 800 chemicals known to the State to cause cancer and/or reproductive harm.  Proposition 65 allows private citizens—upon meeting certain prerequisites—to bring enforcement actions and, if successful, obtain civil penalties of up to $2,500 per day for each violation and injunctions ordering the companies to provide the requisite warnings, or reformulation of the products in question, so that they no longer contain the violative chemical(s).

AB 227 would allow certain business owners who have received a 60-Day Notice of Violation of Proposition 65 a 14-day period to correct the violation without being subject to a lawsuit.  This “14-day cure” will apply to the following types of exposures:

• 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.

In order to obtain protection from suit, the alleged violator must: (1) correct the alleged violation within 14 days; (2) pay a civil penalty of $500; and (3) send a written statement, signed under penalty of perjury, to the private enforcer describing all the steps taken to correct the alleged violation, and include a copy of the warning provided.  AB 227 further provides that if there is a dispute between the private enforcer and the alleged violator over whether the alleged violator has properly complied with each of the three required steps, the burden of proving such compliance is on the alleged violator.

Governor Brown has also proposed a number of his own reforms to Proposition 65, including requiring scientific support before initiating an enforcement action and requiring that health hazard warnings be more specific.  The Chanler Group supports these reforms and has long implemented them in our own Proposition 65 practice.

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.

See below to read the version of AB 227 that passed the Assembly and is now before the California Senate.