California Prop 65 Reform?

By Daniel J. Herling

California has a reputation for many things: 8th largest economy in the World; land of fruits and nuts and a state not being overly business friendly.  The 1986 voter-approved Safe Drinking Water & Toxic Enforcement Act aka Prop 65 is often held up as Exhibit 1 in support of that reputation.

Prop 65 requires the Governor to publish a list of Chemicals known to the State of California to cause cancer and/or reproductive toxicity.  Prop 65 allows citizen enforcement lawsuits to be brought by governmental agencies (AGs/DAs) and by non-profit organizations (sometimes known in certain circles as “Bounty hunters”) against alleged violators, often retailers whose products may contain a listed chemical.  Generally, the lawsuits demand a recall of products sold; warnings to be placed on the product or at or near the point of sale or a reformulation of the product; payment of civil penalties and ATTORNEYS FEES.

Since its inception, complaints from the business community have existed.  Recently, Governor Jerry Brown, not known as an instrument of conservative causes (See, Governor “Moonbeam”, Linda Ronstadt) has undertaken a review to “overhaul” Prop 65.

Proposed reforms include:

  1. Exempt retailers who employ less than 25 people—current cutoff is 10 employees
  2. Citizen plaintiffs required to provide to alleged violators information that will set forth specifics relating to dates of purchase, location of purchase and proof of purchase of products with the listed chemicals
  3. Citizen plaintiffs required to provide AG’s office more information about so-called “payments-in-lieu-of-penalties”—in other words, where is the money being paid by retailers in settlement going?
  4. Early meetings between plaintiffs and businesses to exchange information in order to “resolve the claims promptly”—in other words, “Show me the science”

Proposed reforms dropped:

  1. Opportunity to cure provision proposed by business
  2. Bifurcation of settlement allowing Judge to consider merits of attorneys fees separately from other settlement terms
  3. Placing prolific Prop 65 filers under increased judicial scrutiny

Reactions have varied but to put the cottage industry of Prop 65 litigation into perspective, the president and legal director of the Environmental Law Foundation (a citizen plaintiff in several Prop 65 actions) was quoted regarding his view of the proposed reforms: “It’s bad faith”, This is completely out of the blue”.

We are not holding our breath waiting for the reforms to pass the state legislature.

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Daniel J. Herling

Member / Co-chair, Product Liability Practice

Daniel J. Herling is a highly regarded product liability defense attorney at Mintz. He handles litigation and class actions involving consumer products, leveraging his deep knowledge of California's consumer protection regulations and laws.