Mike Rogge

AG announces changes to Prop 65 regs

By Mike Rogge

Capitol Update, Oct. 1, 2015 Share this on FacebookTweet thisEmail this to a friend

On Monday, September 28, Attorney General (AG) Kamala Harris announced a series of regulatory changes to Proposition 65 meant to curb frivolous lawsuits. Prop 65 is the landmark law that requires businesses to provide warnings if they expose individuals to any listed carcinogens or reproductive toxins in products, homes and the workplace.

The Sacramento Business Journal reports that “businesses paid more than $29 million in settlements last year related to Proposition 65. Of that total, $21 million went for attorney fees and costs.”

Kristin Ford, Press Secretary for the AG, stated that the projected changes create “less financial incentive for parties to bring litigation against businesses in ways that are not necessarily in the public interest.” California presently has little oversight in determining how those settlement costs are contributing to the public health goals of Prop 65.

The proposed regulations would (1) impose a cap on the fraction of settlement payments that can be paid “in lieu of” civil penalties; (2) require both that the projects with an Additional Settlement Payment component be subject to ongoing judicial supervision, and that such payments fund only projects with a clear nexus to specific violations giving rise to the settlement; and (3) raise the bar for determining when a settlement confers the “significant” public benefit prerequisite to obtaining attorney’s fees. According to the AG, the proposals are intended to address litigation abuse and increase accountability.

 

The amendments mark the first substantial change to the AG’s Prop65 regulations since 2003. A 45 day comment period is open until November 9th.

 

Offsetting these positive developments from a business perspective, California’s Office of Environmental Health Hazard Assessment (OEHHA) currently has draft regulations proposed which would change current Prop 65 warnings, the Maximum Allowable Daily Level (MADL) for lead, averaging for reproductive toxicants, lot averaging and a switch to using an arithmetic mean….all of which will result in more warnings and substantially increase litigation.  Stay tuned!

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