Amidst much fanfare, California Governor Jerry Brown announced yesterday his support for a variety of changes to California's Proposition 65, which is well-known to readers of Cal Biz Lit and officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986.
As outlined in the Governor's press release, he is supporting measures to:
• Cap or limit attorney’s fees in Proposition 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 limits 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 Proposition 65 warnings are needed for chemicals that cause reproductive harm.
• Require more useful information to the public on what they are being exposed to and how they can protect themselves.
CBL would like to think this is real and that some action will be coming to significantly reform the oft-abused but highly popular Proposition 65. But CBL is somewhat skeptical. And that skepticism is only partly fueled by the fact that The Chanler Group, the self-described "Largest Proposition 65 Citizen Enforcement Law Firm," wasted no time in announcing its support for the Governor's proposals:
Many of the proposed reforms have long been implemented by The Chanler Group in their own practice, including supporting our clients’ certificates of merit with laboratory test results and other information from scientific experts demonstrating that consumers would likely be exposed to the listed chemicals. The Chanler Group also shares such laboratory test results with the alleged violator, provided they agree to keep such results confidential. The Chanler Group has been a vocal opponent of generic warnings, and favors requiring stronger, more specific language in the health hazard warnings provided to consumers so that they can make more informed choices, and are more aware of what chemicals they are being exposed to, the risks of such exposures, and how they can protect themselves.
Well, ok, would the bounty-hunter bar support the following?
- Limiting attorneys' fees to a percentage of penalties recovered?
- Moving the burden of proof to the plaintiff to show that exposures exceed the applicable no significant risk level ("NSRL") or maximum allowable dose level ("MADL") and requiring disclosure of a scientific analysis of that proof to the alleged violator with the 60 day notice?
- Eliminating the scientifically unjustifiable 1/100 rule for the MADL for reproductive and developmental toxicants?
Most importantly, would the private enforcer bar support Assembly Member Gatto's AB 227, allowing a company receiving a 60 day notice to avoid prosecution by curing the violation within 14 days? Or better still, Cal Biz Lit's proposal to allow sixty days to cure violations?
Those measures would be real reform.