Governor proposes to curb Prop 65 lawsuit abuse

By CMTA Staff

Capitol Update, May 9, 2013

On Tuesday, May 7th, Governor Brown revealed plans to pursue a series of reform measures he claims will "strengthen and restore" the original intent of Proposition 65.

Approved by voters in 1986, Prop 65, known as the Safe Drinking Water and Toxic Enforcement Act, requires the state to publish a list of chemicals known to cause cancer, birth defects or reproductive harm. Chemicals are placed on the list following an assessment by Prop 65’s administrating agency, the Office of Environmental Health Hazard Assessment (OEHHA). While listed chemicals are not banned outright under Prop 65, the law 1) prohibits businesses from discharging or releasing listed chemicals where contamination of drinking water may or will occur, and 2) requires businesses, that use listed chemicals in their products, to provide consumers with a clear and reasonable warning about potential harmful exposure.

Since its passage, Prop 65 has become a source of political controversy given the exorbitant amount of lawsuits filed under the law. The Governor’s plans are an attempt to curb such egregious lawsuit abuse by what he calls “unscrupulous lawyers driven by profit rather than public health.” Since 2008, nearly 2,000 complaints have been filed by "citizen enforcers."

Brown has proposed the following reforms:

  • Cap or limit attorneys' fees in Prop 65 cases;
  • Require stronger demonstration by plaintiffs that they have information to support claims before litigation begins;
  • Require greater disclosure of plaintiff’s information;
  • Set limitations on the amount of money in an enforcement case that can go into settlement funds in lieu of penalties;
  • Provide the state with the ability to adjust the level at which Prop 65 warnings are needed for chemicals that cause reproductive harm; and
  • Require more useful information to the public on what they are being exposed to and how they can protect themselves.

These reforms appear to be very positive. The only change that seems to cause concern is the last one. Many businesses use a rather generic warning that does not list all of the chemicals, because there are so many and they can change. In addition, OEHHA has added over a dozen chemicals every year. This issue can plague not only manufacturing plants, but businesses such as grocery stores as well. These concerns will be discussed with the Administration.

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