TCG Participates in Meeting with Governor’s Office Re Reforms to Prop 65

Members of the staff of California Governor Edmund G. (“Jerry”) Brown, Jr. today hosted the third in a series of meetings with stakeholders to discuss the Governor’s proposed reforms to Proposition 65.  The topic for today’s meeting was revising the lawsuit provisions of Proposition 65, which are codified in California Health and Safety Code section 25249.7.  The stakeholders include state agencies, such as the California Attorney General’s Office; California’s Office of Environmental Health Hazard Assessment; attorneys—including The Chanler Group—that represent citizen enforcers in Proposition 65 actions brought in the public interest; non-profit and environmental groups that are often named plaintiffs in Proposition 65 actions; and others. 

A draft of proposed revisions to Proposition 65 regarding actions brought by citizen enforcers was distributed prior to the meeting.  A copy of the Governor’s draft is posted below, and the proposed revisions appear as underlined text.  Among the proposed revisions discussed were:

• A requirement that citizen enforcers provide test data in support of their certificates  of merit to the Attorney General
• If exposure to a chemical through contact with the skin (dermal contact) is alleged, the citizen enforcer must make a showing that the chemical is likely to come off the product on contact
• A requirement that citizen enforcers seeking an award of attorney’s fees under Code of Civil Procedure section 1021.5 (the private attorney general law) show that the award is reasonable by specifically discussing a number of factors, including the novelty of the alleged violation, the amount of attorney’s fees the plaintiff’s attorney has received during the past four years from settlements involving the same chemicals; the amount of, and reason for, litigation occurring after the alleged violator corrected the violation
• Limiting the amount of any payment to an organization in lieu of civil penalties so that it does not exceed the penalty amount and requiring that the settlement describe a substantial connection between the activities funded and the violation
• A requirement that citizen enforcers provide their test data to alleged violators if the alleged violators tender their test data and other information to the citizen enforcer

Additional meetings for the stakeholders are planned.

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.