Enforcement of Proposition 65 Actions May Soon Become Less Profitable for Private Plaintiffs


California State Attorney General Kamala Harris recently proposed amending certain provisions of the state's Safe Drinking Water and Toxic Enforcement Act of 1986 (also known as "Proposition 65") in an effort to curb abuse by "private plaintiffs." Many of these Proposition 65 lawsuits are brought by the same "private plaintiffs" represented by the same private law firms. The goal of the amendments is to "help restore public confidence that Proposition 65 is used for its proper health-protective purposes and not abused for private gain" by re-directing settlements away from the Plaintiff's bar; but rather, utilized for testing chemicals and establishing risk levels.

The amendments would affect settlement terms, penalty amounts, and attorney's fees in civil actions filed by private persons in the public interest pursuant to Proposition 65. Specifically, the proposed regulations would limit the ability of private plaintiffs to divert the statutorily mandated penalty to themselves or to third parties (aka "PILP"), and to ensure that more of the civil penalty funds be given to the Office of Environment Health Hazard Assessment, the agency enacted by statute to administer and continue implementing the Proposition 65 program.

Proposition 65 is not a personal injury statute but rather a right to know law aimed at protecting California citizens from exposures to chemicals known to the State to cause cancer, birth defects or other reproductive harm, without first receiving a clear and reasonable warning. Proposition 65 is a relatively unique statute in that enforcement of any alleged Proposition 65 violation can be brought by the California Attorney General's Office, district attorney, city attorney, or any individual acting in the public interest (i.e., private plaintiff). However, private plaintiffs can only initiate Proposition 65 lawsuits if they have provided at least 60 days notice ("sixty day notice") of the alleged violation to the business, as well as to the Attorney General and the appropriate district attorney and city attorney, and the Attorney General, district attorney or city attorney has not taken action.

If a private plaintiff brings a Proposition 65 lawsuit, he or she (as well as their attorney) can be awarded the following:

  • 25% of any civil penalty assessed against the business (which can reach up to $2,500 a day);
  • direct a portion of the settlement to an entity in lieu of a civil penalty that is supposed to go toward causes or activities that further the purpose of Prop. 65 (also known as "Payment in Lieu of Penalties" or "PILP");
  • and attorney's fees.

The Santa Clarita Daily Journal recently reported 17 settlements in August and September 2015 that garnered at least $396,000 in civil penalties and $329,600 in attorney's fees. According to the California Attorney General's Office, close to 700 settlements were made in Proposition 65 lawsuits brought by 20 private plaintiffs in 2014. In settling these Proposition 65 lawsuits, businesses paid more than $29 million, with an astounding 71% ($21,047,746) awarded in attorney's fees and costs. In addition, 17% ($4,915,648) was awarded in civil penalties while 12% ($3,519,885) was awarded as "PILP."

So far in 2015, the California Attorney General's Office received 970 sixty day notices. The top three chemicals identified in the notices were: Di(2-ethylhexyl)phthalate (DEHP) (36%); lead (30%) and Diisononyl phthalate (DINP) (20%). While the notices identifying DEHP involved mostly vinyl items such as bags and hand tools, a surprising number of notices identifying lead involved food products ranging from chocolate to vinegars to protein powders and ginger candy.

For more information about Proposition 65 litigation, please contact our office at info@pooleshaffery.com.

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