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AB 1583 Passes Senate and Assembly – But Will It Promote Transparency in Proposition 65 Private Enforcement?

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 …Read More

OEHHA Provides Guidance on Safe Harbor Warnings for Lead Under New Regulations

The Office of Environmental Health Hazard Assessment (OEHHA) has provided guidance on how to provide warnings for lead under the new safe harbor warning regulations in Title 27, California Code of Regulations, sections 25601, et seq. This guidance, provided in response to Grimaldi Law’s request for interpretation, clarifies that businesses may use the term “lead” in a combination warning, i.e., a warning addressing both the cancer and reproductive harm endpoints, as set forth in Section 25603(a)(2)(D) of the new safe harbor warning regulations – notwithstanding the fact that the formal identification for lead as a carcinogen is “lead and lead compounds.”‘ Background Proposition 65 requires businesses with 10 or more employees to provide a “clear and reasonable warning” before exposing individuals to a Proposition 65-listed chemical, if the exposure to that chemical is above its regulatory warning level. Since 1988, the Proposition 65 regulations have set forth the warning language …Read More

Proposition 65 Amendment AB 1583 Referred to California Senate Judiciary Committee

A proposed amendment to Proposition 65, AB 1583, has passed out of the California Assembly and has been referred to the California Senate Judiciary Committee. The bill, intended to increase transparency and also ensure that businesses are aware of Proposition 65’s requirements, would revise Proposition 65 as follows: Make the basis for the Certificate of Merit discoverable. Background. Under current law, a private enforcer alleging violation of the Proposition 65 warning requirement must include a Certificate of Merit with its Notice of Violation, per Health & Safety Code Section 25249.7(d)(1). In the Certificate of Merit, the private enforcer is required to declare that it has consulted with one or more persons with appropriate expertise who has/have reviewed information relating to the alleged violation and that, based on that information, the private enforcer believes that there is a reasonable and meritorious claim of a violation. For the Notice of Violation submitted …Read More

OEHHA Proposes Amendment to Proposition 65 Notice Regulations

The California Office of Environmental Health Hazard Assessment has announced that it intends to amend the Proposition 65 notice regulation at Title 27, California Code of Regulations Section 25903(b)(2)(E) and Appendix A, to “clarify the content required in notices of violation served on alleged violators of Proposition 65.” Comments on the proposal are due by July 3, 2017 and may be submitted electronically, per the notice. Under current regulations, a Proposition 65 Notice of Violation must include an Appendix A. Among other things, Appendix A must include a Special Compliance Procedure and Proof of Compliance Form, which alleged violators may use to resolve certain — and very specific — types of alleged Proposition 65 violations. The Special Compliance Procedure and Proof of Compliance Form became required after Proposition 65 was amended to include a special, streamlined, and low-cost way to resolve alleged violations involving: An alleged exposure to alcoholic beverages that are …Read More

Senate Committee Approves S. 951, The Regulatory Accountability Act

The Senate Committee on Homeland Security and Governmental Affairs gave the green light to the Regulatory Accountability Act (RAA) on May 17, 2017. The RAA (S.951), introduced by Senator Portman (R-OH) and Senator Heitcamp (D-ND), aims to “reform the process by which Federal agencies analyze and formulate new regulations and guidance documents.” If passed, the bill, which accompanies a similar bill passed by the House (H.R. 5), could make it much more difficult for agencies to implement regulations. Although billed by its sponsors and co-sponsors — Senator Hatch (R-UT) and Senator Manchin (D-WV) — as a bipartisan bill, support for the legislation is divided largely along partisan lines. The bill has not yet been scheduled for a full-bodied debate or vote. Changes to Agencies’ Authorities If passed, the RAA would be the first update to the Administrative Procedural Act since 1946. The bill changes the federal rulemaking process, as well as …Read More