On September 14, 2017, the California Senate and Assembly passed AB 1583, and Governor Brown is expected to sign it into law. This bill is intended to promote transparency in Proposition 65 private enforcement. To be sure, private enforcement is in dire need of increased transparency. However, whether this bill will be robust enough to achieve that goal — that is uncertain.
The bill contains three main components:
- It will make the basis for the Certificate of Merit discoverable to the public, subject to legal privileges.
- It will require the Attorney General to formally communicate to the private enforcer and the alleged violator when a claim is determined to have no merit.
- It will require the Governor’s Office of Business and Economic Development (Go-Biz) to post information about Proposition 65 on its website.
Making the Certificate of Merit Discoverable
Under current law, a private enforcer is required to serve a 60-day Notice of Violation prior to filing an enforcement action against an alleged violator. As part of this requirement, the private enforcer also is required to submit a Certificate of Merit, which declares that the enforcer has consulted with at least one expert who has reviewed factual information relating to the alleged violation and that the claim is reasonable. The Certificate of Merit must be submitted along with the factual information that provides the basis for the private enforcer’s claim. This factual information — which is submitted to the Attorney General and not to the alleged violator — is key to the enforcer’s claim. But it is not discoverable by the alleged violator in litigation, leaving the alleged violator unable to know the scope of the alleged violation. This bill would make the Certificate of Merit discoverable, subject to any existing legal privileges.
Formal Communication by the Attorney General Regarding the Merits of A Claim
The Attorney General contacts private enforcers when concerns about submitted Notices of Violation, including Certificates of Merit and underlying factual information, arise. AB 1583 would also formalize the practice by requiring the Attorney General to communicate via a letter to the private enforcer and the alleged violator when the Attorney General believes that a claim has no merit. The bill also would require such communications to be publicly available. However, the failure of the Attorney General to send such a letter is not to be taken as an endorsement or approval of the Notice of Violation.
Public Posting of Proposition 65 Information
Information about Proposition 65 will be required on the Go-Biz website. The notice is intended to help businesses learn about Proposition 65 requirements in order to avoid Proposition 65 violations. The notice will read as follows:
Proposition 65, officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses to provide a clear and reasonable warning before knowingly and intentionally exposing anyone to chemicals that are known to cause cancer or birth defects or other reproductive harm. It is important to know that a product that receives certification from the United States Food and Drug Administration does not necessarily meet California standards for chemical exposure. Businesses should be aware of the levels of harmful chemicals in their products and of applicable Proposition 65 requirements. For more information on Proposition 65 and how to comply with its requirements, please visit https://oehha.ca.gov.
Supporters of the bill, such as the State Executive Director of the California NFIB, say that the bill will protect small businesses from being targeted by trial lawyers who allege violations, fairly or unfairly, for economic gain. In addition, publicly posting communications may cause private enforcers to be more cautious in asserting claims in the first place. In making Proposition 65 information more readily available to the public on the Go-Biz site, AB 1583 will go some way in avoiding the “gotcha!” aspect of Proposition 65 enforcement by providing a place to begin educating businesses — especially out of state businesses — about the law’s requirements.
Still, it is possible that the practical benefits of the bill may be much more limited than intended. A letter from the Attorney General regarding a claim’s lack of merit still would not prevent a private enforcer from filing a lawsuit. Private enforcers likely will resist producing their underlying evidence of a violation, claiming privilege and thereby making it difficult — and expensive — for businesses to litigate the issue and view the factual information in the Certificate of Merit. Alleged violators also should be mindful that arguments they may assert about the scope of privilege attaching to factual information will certainly be used against them as well, if they seek to protect their own factual information from discovery in litigation. Finally, a defendant in a Proposition 65 lawsuit can never forget that, if the case is settled or if judgment is rendered against it, the defendant may be liable for the plaintiff’s reasonable attorneys’ fees under California Code of Civil Procedure section 1021.5.
Pick your fights carefully.
This blog article was researched and written by Brown University Class of 2018 student Aisha Keown-Lang. Ms. Keown-Lang is studying biology and political science at Brown University with the goal of going into bioethics and public health. Her special interest in genetics stems from her research in the Li Lab at UCSF and the Gerbi Lab at Brown. After having worked with children in the Providence school system for nearly three years, her commitment to improving scientific literacy and expanding health services in underserved communities remains strong. Ms. Keown-Lang is currently a writer for Brown’s Science Cartoon Program (SciToons), which aims to communicate scientific research and ideas to a diverse audience.
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