Gov. Brown Signs Prop 65 Bill, Creating 14-Day Cure Period In Limited Cases

The Los Angeles Times reports that Governor Jerry Brown has signed AB227 into law, which will amend Proposition 65 to give certain businesses a 14-day “cure period” to remedy violations of the law without being subject to civil penalties.  Assemblyman Mike Gatto originated AB227.

Proposition 65, or the Safe Drinking Water and Toxic Enforcement Act of 1986, requires companies to provide a clear and reasonable health hazard warning before exposing citizens to chemicals known to the state to cause cancer or reproductive harm.  AB227, which is now part of California Health and Safety Code section 25249.7, creates new exceptions to the mandatory health hazard warning requirement.  Under the new law, a private enforcer cannot sue an alleged violator of Proposition 65, or recover payments in lieu of penalties or reimbursement of costs and attorneys’ fees, if all of the following conditions have been met:

• A private enforcer serves a 60-Day Notice of Violation of Proposition 65 (“Notice”) on or after the effective date of the new law, which according to The Los Angeles Times, is October 7, 2013, and the Notice alleged one or more of the following specific types of violations:

1.     The Notice alleges an exposure 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;  and/or,

2.     The Notice alleges an exposure 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; and/or

3.     The Notice alleges an exposure 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;

• Within 14 days of service of the Notice, the alleged violator corrects the alleged violation and agrees to pay a civil penalty in the amount of $500 per facility where the alleged violation occurred;
• Provides written notice to the private enforcer that the violation has been corrected using a proof of compliance form; and
• The alleged violator delivers the civil penalty to the person that served the Notice within 30 days of service of that Notice.

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.