According to news sources, California’s Environmental Protection Agency (Cal/EPA) has informed stakeholders that the effort to reform Proposition 65 (Prop. 65) procedures to either exempt small business from its warning requirements or otherwise curb abusive or frivolous lawsuits has been dropped. California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65) requires the governor to publish a list of chemicals known to the state to cause cancer or reproductive toxicity and then imposes on businesses the obligation to provide warnings to citizens exposed to these chemicals. The law allows private citizens to sue to enforce the warning requirements.
California Gov. Jerry Brown (D) had earlier announced that his office and Cal/EPA would introduce legislation to reform the chemical warning law, but efforts to gain consensus among stakeholders was apparently impossible. Environmental and consumer protection interests objected to shielding smaller retailers from the litigation, contending that it would illegally change the law’s intent. Information about Brown’s initiative appears in Issue 483 of Shook, Hardy & Bacon’s Food & Beverage Litigation Update.
Because the Prop. 65 implementing agency, Cal/EPA’s Office of Environmental Health Hazard Assessment (OEHHA), cannot make significant changes in the absence of revisions to the law, it may reportedly attempt “some” litigation reforms through rulemaking. OEHHA may also continue pursuing regulations that redefine Prop. 65 warnings; it recently held a public meeting to discuss potential changes to the way the warnings are structured. Industry officials reportedly opposed those changes. The Civil Justice Association of California, which apparently represents business interests, responded to the latest development by lauding the governor for recognizing “the problem of Proposition 65 abuse” and expressed disappointment “that meaningful Prop. 65 reform is not going to happen this legislative session.” See Inside Cal/EPA and The Recorder, August 29, 2013.