The California Legislature has approved a bill (A.B. 227) that would impose a number of restrictions on private parties seeking to enforce the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65) and provide relief for small businesses that have been litigation targets since its enactment. If approved by the governor, who has until mid-October to do so, the law would require a person bringing a matter in the public interest to prepare a certificate of merit stating that the person or her attorney "has consulted with one or more persons with relevant and appropriate experience or expertise who has reviewed facts, studies, or other data regarding the exposure to the listed chemical" and, on the basis of that information, the person executing the certificate "believes there is a reasonable and meritorious case for the private action."
If a court concludes that "there was no actual or threatened exposure to a listed chemical," it would be permitted to review the information in the certificate of merit and deem the action "frivolous" if it "finds that there was no credible factual basis for the certifier’s belief that an exposure to a listed chemical had occurred or was threatened." To approve a Prop. 65 settlement, a court would be required to find that the warning required complies with the law, the attorney’s fee award is reasonable and the penalty is reasonable.
The bill would also give an alleged violator an opportunity to correct an alleged transgression and, further, would forbid the filing of a Prop. 65 action or any recovery if it has done so and if the violation involves exposure to (i) alcoholic beverages consumed on the alleged violator’s premises; (ii) a listed chemical "in a food or beverage prepared and sold on the alleged violator’s premises" to the extent "the chemical was not intentionally added" or formed by cooking "necessary to render the food or beverage palatable or to avoid microbiological contamination"; (iii) "environmental tobacco smoke caused by entry of persons (other than employees) on premises owned or operated by the alleged violator where smoking is permitted at any location on the premises"; or (iv) listed chemicals in engine exhaust, "to the extent the exposure occurs inside a facility owned or operated by the alleged violator and primarily intended for parking noncommercial vehicles."