Prop 65: Reform of Toxics Law a Challenge
California Lawyer

Prop 65: Reform of Toxics Law a Challenge

July 2014

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Proposed new state rules for implementing Proposition 65, slated for release this summer, may end up perpetuating rather than resolving the long-running debate over the controversial chemical-disclosure law.

Prop. 65, which California voters passed in 1986, requires warnings to consumers of the presence of certain levels of 800 listed toxins and carcinogens in drinking water, foods, and other products, as well as in workplaces and public venues (see Cal. Health & Saf. Code ยงยง 25249.5-25249.13). Many industries have long found the law overbroad and agree with Governor Jerry Brown that lawsuits pursued under the measure often are "frivolous shakedowns."

AB 227, authored by Assemblymember Mike Gatto (D-Burbank) and signed into law by Brown last year, was the first Prop. 65 reform ever to win the support of two-thirds of the Legislature (as required to modify ballot measures). But it only made small changes; some businesses can now avoid costly litigation and penalties by correcting minor violations and paying a fine within 14 days of notification.

Consumer activists, plaintiffs, environmentalists, and Brown all believe consumers have the right to know more about how products might expose them to potentially toxic levels of certain ingredients. James Wheaton, legal director of the Environmental Law Foundation in Oakland, says the proposed new rules will achieve that as well as modernize the law. Wheaton says Prop. 65's greatest value lies in motivating companies to eliminate toxic ingredients so they can avoid posting warnings.

In the draft rules, the state Office of Environmental Health Hazard Assessment (OEHHA) highlights twelve of the listed chemicals that businesses would have to identify when a product or venue causes significant exposure to them. Among other changes, the rules also would require companies to post exposure data on OEHHA's website.

Leslie T. Krasney, a partner at Keller and Heckman in San Francisco who specializes in regulatory and administrative law, expects continuing pushback from the industry. For one, it's challenging to determine whether a product actually causes exposure to a listed ingredient. Krasney also questions OEHHA's methodology in choosing the chemicals. The rules are likely to be finalized in about a year.

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