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 to the Attorney General, the Certificate of Merit must be accompanied by factual information establishing the basis for the private enforcer’s belief.
However, that factual information is not discoverable in litigation. Nor is it readily given up by private enforcers, leaving the alleged violator guessing at the scope of the alleged violation – or even if, indeed, the private enforcer has evidence of any violation at all.
What the bill would do. The bill would require the factual information underpinning the Certification of Merit to be discoverable, subject to any applicable legal privilege.
Will it work? Making the factual basis of the alleged violation discoverable is certainly a step in the right direction. However, it is likely that private enforcers will remain recalcitrant in informally sharing with alleged violators the factual basis for their claims, absent requirements for confidentiality agreements and other restrictions on use. Even in litigation, private enforcers likely will clam privilege as the basis for refusing to produce such information – meaning that the alleged violator likely will never really know what constituted the basis of the claim in the first place.
Require the Attorney General to formally communicate his belief that the claim has no merit.
Background. The Attorney General, in its role of supervising private Proposition 65 enforcement, reviews all Notices of Violations and related Certificates of Merit and underlying factual information. When the Attorney General’s office has concerns about the merits of the Notice of Violation or related issues, it contacts the private enforcer to discuss those concerns. Such communications can result in the private enforcer withdrawing its notice or providing additional information supporting its claim.
What the bill would do. The bill would formalize this practice. If the Attorney General believes that the claim has no merit, the Attorney General would be required to communicate that belief in a letter served on the private enforcer, and to make those letters publicly available. The proposed amendment specifically states that the Attorney General’s failure to serve such a letter shall not be deemed an endorsement of the claim.
Will it work? Publicly posting these formal communications will be helpful for members of the regulated community to detect trends in how specific private enforcers execute their obligations for substantiating their claims, trends that the Attorney General’s office already knows from its standard practice of reviewing Notices of Violation. The new requirement may even encourage private enforcers to be extra careful in factually justifying their claim, to avoid being identified on what may end up being the Attorney General’s “webpage of shame.”
Require the Governor’s Office of Business and Economic Development (Go-Biz) to post information about Proposition 65 on its website.
Background. Many businesses, especially small and non-California businesses, first learn about Proposition 65’s requirements when they receive a Notice of Violation from a private enforcer. A number of business trade organizations have complained that it is not easy for businesses to learn that their products or operations are subject to Proposition 65.
What the bill would do. Requiring Go-Biz to post Proposition 65 information on its website presumably would fill this information vacuum. The required notice would read:
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.
Will it work? It is certainly true that there seems to be little information about Proposition 65 on “regular”’ government business websites, and that businesses – especially small businesses – seem to be regularly blindsided by this law. Any effort to publicize it will be welcome. As for the text of the proposed notification, it highlights an important piece of information that businesses routinely fail to appreciate, i.e., that compliance with one regulatory program is not necessarily equivalent to complying with Proposition 65. But the notification’s focus on FDA requirements misses the mark a bit, if only because this problem of regulatory non-equivalence permeates all sorts of different consumer product categories.
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