California Proposition 65 Reform Clears First Hurdle

By Riëtte van Laack –

On Friday, May 24, 2013, the California Assembly unanimously voted (72-0) for bill AB 227, amending Proposition 65 by including a new provision allowing certain small business owners 14 days to fix an alleged violation of Proposition 65’s warning requirements. 

AB 227 does not apply to warnings for all products and all situations in which a warning is required. It only deals with certain instances where there is private citizen enforcement of California’s Proposition 65.  Proposition 65 contains provisions requiring all business owners and manufacturers to give clear and reasonable warnings about products that contain listed chemicals that are known (to the state of California) to cause cancer or reproductive harm.  Right now, this list includes approximately 800 substances. Companies that fail to warn the consumer face fines up to $ 2500 per day per violation.  Threatened by enforcement action (Proposition 65 permits private citizens to pursue actions), many businesses settle rather than litigate. 

This proposed amendment is limited to certain circumstances where there is an  alleged failure to warn for:

• exposure to alcoholic beverages and/or chemicals formed on the alleged violator’s premises by necessary preparation of food or beverages that are sold for immediate consumption on the premises; 
• exposure to environmental tobacco smoke caused by entry of persons (other than employees) on such premises where smoking is permitted; and 
• exposure to chemicals known to the state to cause cancer or reproductive toxicity in engine exhaust, to the extent the exposure occurs inside a facility owned or operated by the alleged violator and primarily intended for parking noncommercial vehicles.

Businesses covered under Bill AB 227 that receive a notice for an alleged violation are allowed 14 days to correct the violation.  If the business corrects the alleged violation, meets certain other requirements, and pays a fine of $500, no retroactive fines would apply (see here). 

Passage in the Assembly clears the first hurdle, but the bill must still clear the California Senate by a two-thirds majority and be signed by the governor.  Opposition by consumer advocates and Prop 65 private plaintiffs is anticipated.