Proposed Amendment to Prop 65 Tweaked by California State Senate

Yesterday, the California Senate Environmental Quality Committee (“EQ Committee”) revised AB 227, the proposed amendment to Proposition 65 authored by Assemblyman Mike Gatto. 

While preserving the 14-day cure period for exposures to alcoholic beverages consumed on site, certain foods and beverages prepared on site, tobacco smoke, and engine exhaust in parking lots, the EQ Committee amended the bill in a few significant ways.  If enacted, the newly amended version of AB 227 would require citizen enforcers to provide an alleged violator with:

• a “clear and reasonable description” of the 14-day cure provisions
• information that the alleged violator may not be liable under Proposition 65 if it has fewer than 10 employees
• a form “Notice of Compliance,” to be approved by the Judicial Council, for mandatory use by an alleged violator seeking to invoke the 14-day cure provision.  The new form is to include the statement, “I hereby swear, under penalty of perjury, that I have received a notice of violation of Section 25249.6 and have taken the following steps to comply with Section 25249.7.” 

The EQ Committee’s amendment provides that California’s Office of Environmental Health Hazard Assessment may prescribe specific language for citizen enforcers to include in their 60-Day Notice of Violation  regarding the 14-day cure provision.  The amendment would also limit alleged violators to a one time only use of the 14-day cure provision for “a violation arising from the same exposure in the same facility or on the same premises.” 

Finally, the amendment also eliminates the language that, in the event of a dispute between citizen enforcers and alleged violators regarding whether the alleged violator has complied with the 14-day cure provision, would have placed the burden of proving the applicability of the provision on the alleged violator.

AB 227 is now before the California Senate Judiciary Committee.

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.