Two different efforts to reform Proposition 65 abuses have fallen flat. As CalBizLit readers know, last May, Governor Brown announced a plan to eliminate a number of abuses of the Safe Drinking Water and Toxic Enforcement Act of 1986. These efforts got as far as a series of “stake holder meetings,” followed by a public workshop on changes to warnings followed by . . . . . apparently nothing.
But back in February, with much fanfare, Assembly Member Mike Gatto (D, Silver Lake) introduced Assembly Bill 227, which included a key reform CBL had previously advocated: an opportunity for businesses to avoid Proposition 65 claims by making a prompt correction. While the “fix-it” window was small, it was real. As the bill provided:
A person who receives a notice pursuant to paragraph (1) of subdivision (d) that alleges the person is in violation of Section 25249.6 may, prior to the commencement of an enforcement action, correct the violation within 14 days after receiving that notice and demonstrate to the Attorney General, the city attorney, or the district attorney in whose jurisdiction the notice is filed that the violation has been corrected. An enforcement action shall not be commenced if the Attorney General, the city attorney, or the district attorney concurs that the violation has been corrected.
In other words, a small out-of-state company gets a 60 day notice for failing to give a warning, discovers the world of Proposition 65, immediately begins giving a warning, gets concurrence from the AG, city attorney or district attorney and isn’t subjected to what, for many small companies, is potentially ruinous litigation.
Two months later, the bill was amended to take out the Attorney General, city attorneys and district attorneys (who probably wanted no part of the process):
A person who receives a notice pursuant to paragraph (1) of subdivision (d) that alleges the person is in violation of Section 25249.6 may, prior to the commencement of an enforcement action, correct do both of the following:
(A) Correct the violation within 14 days after receiving that notice and (B) Serve on the person that sent the notice a written statement, signed under penalty of perjury, that fully describes the corrective actions taken and to which is attached a true and correct copy of any posted warnings.
An enforcement action shall not be commenced by a person in the public interest pursuant to subdivision (d) if the person receiving the notice alleging the violation complies with subparagraphs (A) and (B) of paragraph (1).
But then, in May, the great idea collapsed, as the act was amended yet again. The new amendments limited the provision to exposures to alcoholic beverages and food, tobacco smoke and exhaust fumes. They added a provision that the limitations applied only to businesses who had received no 60 day notices for these exposures in the past 5 years. And they required both correction and a $500 penalty payment within fourteen days of receiving the notice.
And five amendments later, that is essentially what passed the Assembly and Senate and what the governor signed. Now, a company receiving a sixty day notice for failing to give a Proposition 65 warning about tobacco smoke, alcoholic beverages, chemicals that are formed by the food cooking process or engine exhaust can avoid suit if, within 14 days of notice, it puts up a Proposition 65 safe harbor warning sign, pays $500 and notifies the bounty hunter of the correction.
CBL thinks we should put this in perspective. From January 1 through October 8, there have been 883 sixty day notices lodged with the Attorney General, many of them directed at multiple companies. So how serious was the problem this bill is trying to fix?
- Six of those notices were for tobacco smoke exposure, and every one of those notices was withdrawn.
- Forty-two notices alleged unwarned exposures to alcoholic beverages, and ten of those were withdrawn.
- We haven’t searched on all cooking product toxins, but for the most commonly cited – acrylamide – there was exactly one notice.
- Likewise vehicle exhaust – one notice.
By comparison, during the same time period, there were 237 notices involving the flame retardant TDCPP, 77 for lead and 286 for the plasticizer DEHP. None of the businesses receiving these notices -- no matter the circumstances -- has any ability to use the "fix-it" provision in this enactment.
Lobbyists and government insiders still often refer to the legislative process as "sausage making." I'd sure like to know what the sausage making process was that wrecked a really good reform idea. Someone should ask Assembly Member Gatto.