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Logo Icon More Proposition 65 Reforms in the Pipeline

On January 12, 2015, the Office of Environmental Health Hazard Assessment (OEHHA), the agency which oversees Proposition 65 in California, presented their notice of proposed changes to the "clear and reasonable warnings" required under the law. When it was implemented back in 1986, California's Proposition 65 ("The Safe Drinking Water and Toxic Enforcement Act of 1986") was heralded as a progressive law with the righteous intent of protecting the public from exposure to toxic substances that could lead to cancer or birth defects. In order to enforce Proposition 65, the California Legislature included a provision which allows civil lawsuits against alleged Proposition 65 violators to be filed by private parties "acting in the public interest." Although this provision was included in order to help reduce the burden on the government from being the only enforcers, this aspect of the Act is the most controversial and is heavily abused by attorneys.

Recognizing the growing number of "shakedown" lawsuits targeting businesses by these private sector enforcers, Governor Jerry Brown proposed reform in 2013 to curb Proposition 65 from "being abused by unscrupulous lawyers." These reforms included provisions to cap or limit attorney's fees in Proposition 65 cases, limits on the amount of money in enforcement cases that can go into settlement funds in lieu of penalties, to provide the State with the ability to adjust the level at which Proposition 65 warnings are needed for chemicals that cause reproductive harm, as well as require more useful information to the public on what they are being exposed to and how they can protect themselves. Despite the fact that the Governor's proposal stressed the need to protect businesses from nuisance lawsuits filed by some lawyers, OEHHA has seemingly turned a blind eye to this issue. Instead, OEHHA has decided to focus its reform efforts on businesses and manufacturers of consumer products through requiring more explicit warnings and changing the "safe harbor" provisions which prevents an entity exposing the public to a toxic substance from being in violation of Proposition 65 if sufficient warning is provided.

Under OEHHA's proposed reforms, warnings would have to include a large black exclamation point in a yellow triangle with the word "WARNING" in capital and bold letters located next to the symbol. Additionally, the following, or substantially similar, language must be included: "This product can expose you to a chemical [or chemicals] known to the State of California to cause cancer and birth defects or other reproductive harm. For more information go to" Furthermore, if a product is reasonably calculated to cause exposure to certain listed chemicals (including acrylamide, benzene, and hexavalent chromium), the new Proposition 65 warning would also require the chemical to be explicitly identified in the warning. OEHHA's reform even takes aim at online businesses by requiring a Proposition 65 compliant warning to be "prominently displayed" before the purchaser completes his or her purchase. The online warning requirement would be in addition to the Proposition 65 warning on the actual product.