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California Governor Proposes Proposition 65 Reform (May 2013)

On May 7, 2013, California Governor Brown proposed reforms to strengthen Proposition 65 and restore its original intent. Proposition 65 was a ballot initiative enacted in 1986 that requires businesses to warn Californians of significant levels of chemicals that cause cancer or reproductive toxicity found in products they purchase or that are released into sources of drinking water. Proposition 65 is enforced by lawsuits filed against businesses, with businesses being required to prove that potential exposures are insignificant. These lawsuits can be costly for small businesses to fight, and resulting settlements generate attorney’s fees but do not result in significant public health protection. Governor Brown hopes to improve how the public is warned about dangerous chemicals and strengthen the scientific basis for warning levels.

While Governor Brown has stated that “Proposition 65 is a good law that's helped many people,” he acknowledges that “it’s being abused by unscrupulous lawyers.” According to Governor Brown, the proposed reform is “an effort to improve the law so it can do what it was intended to do – protect Californians from harmful chemicals.”

The administration, through the California Environmental Protection Agency (Cal-EPA), will work closely with the Legislature and stakeholders to revamp Proposition 65 by addressing frivolous lawsuits, warnings and safe harbor levels. Some of the proposed Proposition 65 updates include:

Frivolous Lawsuits
Some law firms have abused Proposition 65 by filing large numbers of lawsuits against small retail establishments for minor or questionable violations. The Proposition 65 update would address these issues by:

▲ Capping or limiting attorney’s fees in Proposition 65 cases;
Requiring a stronger demonstration by plaintiffs that they have information to support claims before litigation begins;
Requiring greater disclosure of plaintiff’s information; and
Setting limits on the amount of money in an enforcement case that can go into settlement funds in lieu of penalties.

Proposition 65 Warnings
Certain Proposition 65 warning are too general and do not adequately inform the public about what they are being exposed to and how they protect themselves. The Proposition 65 update would address these issues by:

▲ Requiring the name of the chemical(s) involved in the exposure;
▲ Designating the harm posed by each named chemical;
▲ Specifying the general location of the chemical(s) in the area; and
▲ Listing steps to minimize exposure (if applicable).

Safe Harbor Levels
For reproductive toxicants, Proposition 65 requires that exposures fall 1000-fold below the level causing “no observable effects” (NOEL) to avoid the warning and drinking water discharge provisions. This level is unrealistically low for some chemicals and is not consistent with current risk assessment methods for well-studied chemicals. When the NOEL is based on human studies rather than animal studies, the Proposition 65 update would not require warnings or trigger discharge prohibition for exposures falling 100-fold below the NOEL level.

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