The Questionable Benefits of California's Prop 65 Reform

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Many experts agree the California public has become immune to the warnings on goods and premises required by Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986. Instead of educating the public, the more notable outcome is a burgeoning cottage industry of plaintiff attorneys bringing frivolous "bounty hunter" enforcement lawsuits against businesses for minor or illusory violations of the statute. As a forthcoming report from the California Attorney General shows, 73 percent of all private settlement payments—totaling $12.7 million—went toward private enforcers' attorney's fees and costs in Prop 65 lawsuits settled in 2013. This trend prompted Gov. Brown to declare in May 2013 that Proposition 65 reform was necessary to end these "frivolous shakedown lawsuits."

In response, California's Office of Environmental Health Hazard Assessment issued proposed amendments to the regulation on March 7, 2014. Under these notional reforms, businesses operating or selling products in California would need to substantially change their warnings if their products or premises contain certain chemicals listed as "known" carcinogens or reproductive toxicants. OEHHA has claimed — with little support — that these changes will provide "more clarity to the Proposition 65 warning requirements and more specificity regarding the minimum elements for providing a 'clear and reasonable' warning for exposures that occur from a consumer product, including foods and exposures that occur in occupational or environmental settings."

The opposite is likely to occur.

Businesses would no longer be able use the long-standing "safe harbor" warning language if they believe a listed chemical may be in their product. Instead, they must definitively know the chemical content of all their products and premises — including potential contaminants — and warn of presumed "exposures" to the specified chemicals. Combined with an additional requirement to submit onerous information about the chemicals to OEHHA for posting to its website, these "reforms" pose a substantial and unjustified economic and human resources burden for businesses, coupled with the very real risk of new enforcement lawsuits for those who do not — or cannot — comply to the satisfaction of the bounty hunter plaintiffs.

Read more about these changes in our legal commentary, "Calif. Bounty Hunters Will Benefit From Prop 65 'Reform'" published by Law360 on May 13, 2014.