On February 23, 2015, California Assemblyman Bill Quirk introduced AB 543, which would amend Section 25249.6 of Proposition 65 to clarify that a person in the course of doing business does not “knowingly and intentionally” expose an individual to a listed chemical in violation of the law, if the person has an exposure assessment that meets certain criteria. This bill, if passed, will promote the use of such assessments to guide a company’s decision to warn or not, will help reduce so-called “overwarning,” and will provide companies with another statutory basis to resist enforcement actions.
Under this bill, an exposure assessment must meet the following criteria to establish lack of knowledge and intent:
1. It has been conducted by, or under the supervision of, a qualified scientist in accordance with relevant Proposition 65 regulations. The term “qualified scientist” is also defined in proposed Section 25249.11(c);
2. It evaluates the same chemical in or from the same source(s) that is the subject of an alleged violation, and concludes that no exposure is occurring that requires a warning; and
3. It is documented in writing, and is approved and signed by the qualified scientist before the person receives a written notice of a violation under Section 25249.7.
To be clear, this bill does not purport to define the criteria for an exposure assessment developed for a defendant’s affirmative defense to a claim under Section 25249.10(c). Nor does it create a new affirmative defense.
Taken all together, the bill creates an incentive for businesses to use science as a basis for the decision to warn or not, thereby addressing complaints by the Governor’s office, the Attorney General, the Office of Environmental Health Hazard Assessment, citizen groups and the Proposition 65 plaintiffs’ bar that companies are giving unnecessary warnings. That said, the bill does not require that a company conduct an exposure assessment. Rather, it clarifies that having an exposure assessment in hand, before an allegation of a violation, is evidence that the requisite “knowledge and intent” for a Proposition 65 violation does not exist. Of course, companies always have been free to submit any relevant evidence on the issue of “knowingly and intentionally.” However, with plaintiffs asserting that the mere knowledge of the sale of a product (even outside of California) meets that requirement, the clarification offered by this bill is most welcome.
This bill will not cure the problem of unnecessary and frivolous enforcement actions. Indeed, it is the climate of aggressive and unnecessary enforcement that has led to the problem of so-called “overwarning” in the first place, and that climate is not likely to change overnight. Further the regulated community should expect this new provision to be tested in the courts. In the end, though, if the Proposition 65 enforcement community is truly vested in protecting the public interest, it should carefully weigh the benefit of litigating in the face of a pre-enforcement exposure assessment.