AB 1621: Proposition 65: enforcement: private actions.
- Session Year: 2017-2018
- House: Assembly
- Latest Version Date: 2017-03-30
The Safe Drinking Water and Toxic Enforcement Act of 1986, an initiative measure approved by the voters as Proposition 65 at the November 4, 1986, statewide general election (Proposition 65), prohibits a person, in the course of doing business, from knowingly and intentionally exposing any individual to a chemical known to the state to cause cancer or reproductive toxicity without giving a specified warning, or from knowingly discharging or releasing such a chemical into water, or into or onto land and passing into any source of drinking water, except as specified. The act imposes civil penalties upon persons who violate those prohibitions, and provides for the enforcement of those prohibitions by the Attorney General, a district attorney, or specified city attorneys or prosecutors. The act also provides for enforcement by an action brought by any person in the public interest, if that private action is commenced more than 60 days after the person has given notice of the violation that is the subject of the action to the Attorney General and the district attorney, the city attorney, or the prosecutor in whose jurisdiction the violation is alleged to have occurred, and to the alleged violator.
If the notice made by a person bringing an action in the public interest alleges a violation of the acts warning requirement, existing law requires that the notice include a certificate of merit stating that the person executing the certificate has consulted with one or more persons with relevant and appropriate experience or expertise who has reviewed facts, studies, or other data regarding the exposure to the listed chemical that is the subject of the action, and that, based on that information, the person believes there is a reasonable and meritorious case for the private action. Existing law requires factual information sufficient to establish the basis of the certificate of merit to be attached to the certificate of merit that is served on the Attorney General.
This bill would require the same factual information sufficient to establish the basis of the certificate of merit to be attached to the certificate of merit that is served on the alleged violator.
Existing law authorizes the trial court, upon the motion of the alleged violator or the courts own motion, to review the basis for the certificate of merit upon conclusion of an action brought in the public interest and, as part of that review, requires the information in the certificate of merit to be disclosed to the court in an in-camera proceeding at which the moving party is not present. Existing law deems the action to be frivolous if the court finds in that review that there is no credible factual basis for the certified belief that an exposure to a listed chemical has occurred or was threatened. Existing law provides that, except when the trial court reviews the basis for the certificate of merit, the basis for the certificate is not discoverable.
This bill would repeal the prohibition on the moving party being present at the in-camera proceeding and would make the basis for the certificate of merit discoverable. The bill would also authorize a court to award reasonable attorneys fees to a defendant who has prevailed in a final determination of the action.
Proposition 65 provides that it may be amended by a statute, passed by a 2/3 vote of each house of the Legislature, to further its purposes.
This bill would find and declare that it furthers the purposes of Proposition 65.
Existing law provides that it is the intent of the Legislature, with respect to direct service contracts of the departments within the California Health and Human Services Agency, that the contract approval process and payment for services rendered occur within specified timeframes.This bill would make technical, nonsubstantive changes to those provisions.Existing law provides that it is the intent of the Legislature, with respect to direct service contracts of the departments within the California Health and Human Services Agency, that the contract approval process and payment for services rendered occur within specified timeframes.
This bill would make technical, nonsubstantive changes to those provisions.
(a)A person who violates or threatens to violate Section 25249.5 or 25249.6 may be enjoined in any a court of competent jurisdiction.
(b)(1)A person who has violated Section 25249.5 or 25249.6 is liable for a civil penalty not to exceed two thousand five hundred dollars ($2,500) per day for each violation in addition to any other penalty established by law. That civil penalty may be assessed and recovered in a civil action brought in any a court of competent jurisdiction.
(2)In assessing the amount of a civil penalty for a violation of this chapter, the court shall consider all of the following:
(A)The nature and extent of the violation.
(B)The number of, and severity of, the violations.
(C)The economic effect of the penalty on the violator.
(D)Whether the violator took good faith measures to comply with this chapter and the time these measures were taken.
(E)The willfulness of the violators misconduct.
(F)The deterrent effect that the imposition of the penalty would have on both the violator and the regulated community as a whole.
(G)Any other factor that justice may require.
(c)Actions pursuant to this section may be brought by the Attorney General in the name of the people of the State of California, by a district attorney, by a city attorney of a city having a population in excess of 750,000, or, with the consent of the district attorney, by a city prosecutor in a city or city and county having a full-time city prosecutor, or as provided in subdivision (d).
(d)Actions pursuant to this section may be brought by a person in the public interest if both of the following requirements are met:
(1)The private action is commenced more than 60 days from the date that the person has given notice of an alleged violation of Section 25249.5 or 25249.6 that is the subject of the private action to the Attorney General and the district attorney, city attorney, or prosecutor in whose jurisdiction the violation is alleged to have occurred, and to the alleged violator. If the notice alleges a violation of Section 25249.6, the notice of the alleged violation shall include a certificate of merit executed by the attorney for the noticing party, or by the noticing party, if the noticing party is not represented by an attorney. The certificate of merit shall state that the person executing the certificate has consulted with one or more persons with relevant and appropriate experience or expertise who has reviewed facts, studies, or other data regarding the exposure to the listed chemical that is the subject of the action, and that, based on that information, the person executing the certificate believes there is a reasonable and meritorious case for the private action. Factual Identical factual information sufficient to establish the basis of the certificate of merit, including the information identified in paragraph (2) of subdivision (h), shall be attached to the certificate of merit that is served on the Attorney General. General and on the alleged violator.
(2)Neither the Attorney General, a district attorney, a city attorney, nor a prosecutor has commenced and is diligently prosecuting an action against the violation.
(e)A person bringing an action in the public interest pursuant to subdivision (d) and a person filing an action in which a violation of this chapter is alleged shall notify the Attorney General that the action has been filed. Neither this subdivision nor the procedures provided in subdivisions (f) to (k), inclusive, affect the requirements imposed by statute or a court decision in existence on January 1, 2002, concerning whether a person filing an action in which a violation of this chapter is alleged is required to comply with the requirements of subdivision (d).
(f)(1)A person filing an action in the public interest pursuant to subdivision (d), a private person filing an action in which a violation of this chapter is alleged, or a private person settling a violation of this chapter alleged in a notice given pursuant to paragraph (1) of subdivision (d), shall, after the action or violation is subject either to a settlement or to a judgment, submit to the Attorney General a reporting form that includes the results of that settlement or judgment and the final disposition of the case, even if dismissed. At the time of the filing of a judgment pursuant to an action brought in the public interest pursuant to subdivision (d), or an action brought by a private person in which a violation of this chapter is alleged, the plaintiff shall file an affidavit verifying that the report required by this subdivision has been accurately completed and submitted to the Attorney General.
(2)A person bringing an action in the public interest pursuant to subdivision (d), or a private person bringing an action in which a violation of this chapter is alleged, shall, after the action is either subject to a settlement, with or without court approval, or to a judgment, submit to the Attorney General a report that includes information on any corrective action being taken as a part of the settlement or resolution of the action.
(3)The Attorney General shall develop a reporting form that specifies the information that shall be reported, including, but not limited to, for purposes of subdivision (e), the date the action was filed, the nature of the relief sought, and for purposes of this subdivision, the amount of the settlement or civil penalty assessed, other financial terms of the settlement, and any other information the Attorney General deems appropriate.
(4)If there is a settlement of an action brought by a person in the public interest under subdivision (d), the plaintiff shall submit the settlement, other than a voluntary dismissal in which no consideration is received from the defendant, to the court for approval upon noticed motion, and the court may approve the settlement only if the court makes all of the following findings:
(A)The warning that is required by the settlement complies with this chapter.
(B)The award of attorneys fees is reasonable under California law.
(C)The penalty amount is reasonable based on the criteria set forth in paragraph (2) of subdivision (b).
(5)The plaintiff subject to paragraph (4) has the burden of producing evidence sufficient to sustain each required finding. The plaintiff shall serve the motion and all supporting papers on the Attorney General, who may appear and participate in a proceeding without intervening in the case.
(6)Neither this subdivision nor the procedures provided in subdivision (e) and subdivisions (g) to (k), inclusive, affect the requirements imposed by statute or a court decision in existence on January 1, 2002, concerning whether claims raised by a person or public prosecutor not a party to the action are precluded by a settlement approved by the court.
(g)The Attorney General shall maintain a record of the information submitted pursuant to subdivisions (e) and (f) and shall make this information available to the public.
(h)(1)Except as provided in paragraph (2), the basis for the certificate of merit required by subdivision (d) is not discoverable. However, nothing in this subdivision precludes the discovery of information related to the certificate of merit if that information is relevant to the subject matter of the action and is otherwise discoverable, solely on the ground that it was used in support of the certificate of merit.(2)(h)Upon the conclusion of an action brought pursuant to subdivision (d) with respect, both of the following apply with respect to a defendant, if defendant:
(1)If the trial court determines that there was no actual or threatened exposure to a listed chemical, the court may, upon the motion of that alleged violator or upon the courts own motion, review the basis for the belief of the person executing the certificate of merit, expressed in the certificate of merit, that an exposure to a listed chemical had occurred or was threatened. The information in the certificate of merit, including the identity of the persons consulted with and relied on by the certifier, and the facts, studies, or other data reviewed by those persons, shall be disclosed to the court in an in-camera proceeding at which the moving party shall not be present. proceeding. If the court finds that there was no credible factual basis for the certifiers belief that an exposure to a listed chemical had occurred or was threatened, then the action shall be deemed frivolous within the meaning of Section 128.7 128.5 of the Code of Civil Procedure. The court shall not find a factual basis credible on the basis of a legal theory of liability that is frivolous within the meaning of Section 128.7 128.5 of the Code of Civil Procedure.
(2)The court may award reasonable attorneys fees to a defendant who has prevailed in a final determination of the action.
(i)The Attorney General may provide the factual information submitted to establish the basis of the certificate of merit on request to a district attorney, city attorney, or prosecutor within whose jurisdiction the violation is alleged to have occurred, or to any other state or federal government agency, but in all other respects the Attorney General shall maintain, and ensure that all recipients maintain, the submitted information as confidential official information to the full extent authorized in Section 1040 of the Evidence Code.
(j)In an action brought by the Attorney General, a district attorney, a city attorney, or a prosecutor pursuant to this chapter, the Attorney General, district attorney, city attorney, or prosecutor may seek and recover costs and attorneys fees on behalf of a party who provides a notice pursuant to subdivision (d) and who renders assistance in that action.
(k)Any A person who serves a notice of alleged violation pursuant to paragraph (1) of subdivision (d) for an exposure identified in subparagraph (A), (B), (C), or (D) of paragraph (1) shall complete, as appropriate, and provide to the alleged violator at the time the notice of alleged violation is served, a notice of special compliance procedure and proof of compliance form pursuant to subdivision (l) and shall not file an action for that exposure against the alleged violator, or recover from the alleged violator in a settlement any payment in lieu of penalties or any reimbursement for costs and attorneys fees, if all of the following conditions have been met:
(1)The notice given pursuant to paragraph (1) of subdivision (d) was served on or after the effective date of the act amending this section during the 201314 Regular Session and alleges that the alleged violator failed to provide clear and reasonable warning as required under Section 25249.6 regarding one or more of the following:
(A)An exposure to alcoholic beverages that are consumed on the alleged violators premises to the extent onsite consumption is permitted by law.
(B)An exposure to a chemical known to the state to cause cancer or reproductive toxicity in a food or beverage prepared and sold on the alleged violators premises primarily intended for immediate consumption on or off premises, to the extent of both of the following:
(i)The chemical was not intentionally added.
(ii)The chemical was formed by cooking or similar preparation of food or beverage components necessary to render the food or beverage palatable or to avoid microbiological contamination.
(C)An exposure to environmental tobacco smoke caused by entry of persons (other than employees) on premises owned or operated by the alleged violator where smoking is permitted at any location on the premises.
(D)An exposure to chemicals known to the state to cause cancer or reproductive toxicity in engine exhaust, to the extent the exposure occurs inside a facility owned or operated by the alleged violator and primarily intended for parking noncommercial vehicles.
(2)Within 14 days after service of the notice, the alleged violator has done all of the following:
(A)Corrected the alleged violation.
(B)(i)Agreed to pay a civil penalty for the alleged violation of Section 25496.6 25249.6 in the amount of five hundred dollars ($500), to be adjusted quinquennially pursuant to clause (ii), per facility or premises where the alleged violation occurred, of which 75 percent shall be deposited in the Safe Drinking Water and Toxic Enforcement Fund, and 25 percent shall be paid to the person that served the notice as provided in Section 25249.12.
(ii)On April 1, 2019, and at each five-year interval thereafter, the dollar amount of the civil penalty provided pursuant to this subparagraph shall be adjusted by the Judicial Council based on the change in the annual California Consumer Price Index for All Urban Consumers, published by the Department of Industrial Relations, Division of Labor Statistics, Statistics and Research, for the most recent five-year period ending on December 31 of the year preceding the year in which the adjustment is made, rounded to the nearest five dollars ($5). The Judicial Council shall quinquennially publish the dollar amount of the adjusted civil penalty provided pursuant to this subparagraph, together with the date of the next scheduled adjustment.
(C)Notified, in writing, the person that served the notice of the alleged violation, that the violation has been corrected. The written notice shall include the notice of special compliance procedure and proof of compliance form specified in subdivision (l), which was provided by the person serving notice of the alleged violation and which shall be completed by the alleged violator as directed in the notice.
(3)The alleged violator shall deliver the civil penalty to the person that served the notice of the alleged violation within 30 days of service of that notice, and the person that served the notice of violation shall remit the portion of the penalty due to the Safe Drinking Water and Toxic Enforcement Fund within 30 days of receipt of the funds from the alleged violator.
(l) The notice required to be provided to an alleged violator pursuant to subdivision (k) shall be presented as follows:
PRINTER PLEASE NOTE: TIP-IN MATERIAL TO BE INSERTED(m)An alleged violator may satisfy the conditions set forth in subdivision (k) only one time for a violation arising from the same exposure in the same facility or on the same premises.
(n)Nothing in subdivision (k) shall Subdivision (k) does not prevent the Attorney General, a district attorney, a city attorney, or a prosecutor in whose jurisdiction the violation is alleged to have occurred from filing an action pursuant to subdivision (c) against an alleged violator. In any such action, the amount of any civil penalty for a violation shall be reduced to reflect any payment made by the alleged violator for the same alleged violation pursuant to subparagraph (B) of paragraph (2) of subdivision (k).
SEC. 2.The Legislature finds and declares that this act furthers the purposes of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Chapter 6.6 (commencing with Section 25249.5) of Division 20 of the Health and Safety Code).
SECTION 1.Section 38000 of the Health and Safety Code is amended to read:38000.The Legislature states its intent with respect to direct service contracts of the departments within the California Health and Human Services Agency as follows:(a)The contract approval process should take no longer than 30 days from the time the administrative agency generating the contract has approved its provisions.(b)Payment for services rendered shall take no longer than 30 days after an invoice has been approved by the responsible department.(c)If contract approval or payment or both are delayed, the state shall notify community-based agencies within 15 days with instructions to either defer or interrupt services to be contracted. If the state requests an agency to continue providing services, conditions shall be mutually agreed upon in advance for amortization of particular additional costs to the agency involved.The Legislature states its intent with respect to direct service contracts of the departments within the California Health and Welfare Human Services Agency as follows:
(a)Contract The contract approval process should take no longer than 30 days from the time the administrative agency generating the contract has approved its provisions.
(b)Payment for services rendered shall take no longer than 30 days after an invoice has been approved by the responsible department.
(c)If contract approval or payment or both are delayed, the state shall notify community based community-based agencies within 15 days with instructions to either defer or interrupt services to be contracted. If the state requests an agency to continue providing services, conditions shall be mutually agreed upon in advance for amortization of particular additional costs to the agency involved.
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Date
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Status
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|---|---|
| Feb 1, 2018 | From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. |
| Jan 31, 2018 | Died pursuant to Art. IV, Sec. 10(c) of the Constitution. |
| Jan 3, 2018 | In committee: Set, second hearing. Hearing canceled at the request of author. |
| Apr 4, 2017 | In committee: Set, first hearing. Hearing canceled at the request of author. |
| Mar 30, 2017 | From committee chair, with author's amendments: Amend, and re-refer to Com. on E.S. & T.M. Read second time and amended. |
| Apr 3, 2017 | Re-referred to Com. on E.S. & T.M. |
| Mar 30, 2017 | Referred to Coms. on E.S. & T.M. and JUD. |
| Feb 19, 2017 | From printer. May be heard in committee March 21. |
| Feb 17, 2017 | Read first time. To print. |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
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Organization
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Position
|
Date
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|---|---|---|
| Breast Cancer Prevention Partners | ** Against | Apr 2, 2017 |
| California Chamber Of Commerce | ** Support | Apr 2, 2017 |
| California Healthy Nail Salon Collaborative | ** Against | Apr 2, 2017 |
| CALPIRG | ** Against | Apr 2, 2017 |
| Center For Environmental Health | ** Against | Apr 2, 2017 |
| CHANGE Coalition | ** Against | Apr 2, 2017 |
| Clean Water Action | ** Against | Apr 2, 2017 |
| Consumer Attorneys Of California | ** Against | Apr 2, 2017 |
| Environmental Working Group | ** Against | Apr 2, 2017 |
| Physicians for Social Responsibility-San Francisco Bay Chapter | ** Against | Apr 2, 2017 |
Date of Hearing: April 4, 2017
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Bill Quirk, Chair
ABPCA Bill Id:AB 1621 (
Author:Travis Allen) – As Amended Ver:March 30, 2017
SUBJECT: Proposition 65: enforcement: private actions
SUMMARY: Requires anyone bringing an action under Proposition 65 to provide the certificate of merit that is required to be provided to the Attorney General, to the alleged violator. Specifically, this bill:
1) Requires anyone bringing an action under Proposition 65 to provide the certificate of merit and the factual information forming the basis for the certificate of merit, that is already required to be provided to the Attorney General as part of the 60 day notice of intent to bring an action, to the alleged violator.
2) Authorizes a court to award reasonable attorney’s fees to a defendant who has prevailed in a final determination of the action.
EXISTING LAW:
- Enacts the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) which prohibits a person in the course of doing business from knowingly discharging or releasing a chemical known to the state to cause cancer or reproductive toxicity into water or onto or into land where such chemical passes or probably will pass into any source of drinking water. (HSC § 25249.5)
- Prohibits a person in the course of doing business from knowingly and intentionally exposing any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual. (HSC § 25249.6)
- Provides that any person who violates the above provisions may be enjoined in any court of competent jurisdiction and shall be liable for a civil penalty not to exceed $2,500 per day for each violation in addition to any other penalty established by law. (HSC § 25249.7)
- Provides for a specified course of remediation for lawsuits alleging a violation of the clear and reasonable warning requirement for four specified exposures (lawfully permitted alcoholic beverages; chemicals resulting from food or beverage preparation; environmental tobacco smoke on premises where smoking is permitted; and, engine exhaust in parking facilities, as specified). Prohibits the person who files an action from exposure from doing so until 14 days after she or he has served the alleged violator with a notice of alleged violation. Authorizes the person who served the notice of violation to file an action if the alleged violator failed to correct the alleged violation or failed to pay a civil penalty of $500. (HSC § 25249.7)
- Requires the Governor to cause a list to be published of those chemicals known to the state to cause cancer or reproductive toxicity, and to cause such list to be revised and republished in light of additional knowledge at least once per year. (HSC § 25249.8)
- Exempts a business from discharge and release prohibitions for twenty months subsequent to the listing of the chemical in question on the Proposition 65 list. Exempts a business from discharge and release prohibitions if the discharge or release is lawful and will not cause any significant amount of the discharged or released chemical to enter any source of drinking water. (HSC § 25249.9)
- Exempts a business from the warning requirement in cases of federal preemption, for 12 months subsequent to the listing of the chemical in question on the list, and for an exposure for which the person responsible can show poses no significant risk, as specified. (HSC § 25249.6)
- Authorizes amendments to Proposition 65, provided that they are passed in each house of the Legislature by a two-thirds vote and further the purposes of Proposition 65. (Initiative Measure, Proposition 65, Sec. 7, Nov. 4, 1986.)
FISCAL EFFECT: Unknown.
COMMENTS:
Proposition 65: In 1986, California voters approved a ballot initiative, the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly referred to as Proposition 65, to address their concern that "hazardous chemicals pose a serious potential threat to their health and well-being, [and] that state government agencies have failed to provide them with adequate protection…" Proposition 65 requires the state to publish a list of chemicals known to cause cancer or birth defects or other reproductive harm. This list, which must be updated at least once a year, currently includes approximately 800 chemicals. The Office of Environmental Health Hazard Assessment (OEHHA) administers the Proposition 65 program, including evaluating all currently available scientific information on substances considered for placement on the Proposition 65 list.
Under Proposition 65, businesses in California are required to provide a "clear and reasonable" warning before knowingly and intentionally exposing anyone to a Proposition 65-listed chemical. Warnings can be made in many ways, including by labeling a consumer product, posting signs, distributing notices, or publishing notices in a newspaper. Once a chemical is listed, businesses have 12 months to comply with warning requirements.
Proposition 65 also prohibits companies that do business within California from knowingly discharging listed chemicals into sources of drinking water. Once a chemical is listed, businesses have 20 months to comply with the discharge prohibition.
Businesses with less than 10 employees and government agencies are exempt from Proposition 65’s warning requirements and prohibition on discharges into drinking water sources. Businesses are also exempt from the warning requirement and discharge prohibition if the exposures they cause are so low as to create no significant risk of cancer or birth defects or other reproductive harm.
Enforcement of Proposition 65: The California Attorney General’s Office enforces Proposition 65. Any district attorney or city attorney (for cities whose population exceeds 750,000) may also enforce Proposition 65. In addition, any individual acting in the public interest may enforce Proposition 65 by filing a lawsuit against a business alleged to be in violation of this law. Lawsuits have been filed by the Attorney General’s Office, district attorneys, consumer advocacy groups, private citizens, and law firms. Penalties for violating Proposition 65 by failing to provide warning notices can be as high as $2,500 per violation per day. State law requires any person suing "in the public interest" to enforce Proposition 65, to notify the Attorney General of the lawsuit and outcome of the case. All reports on Proposition 65 private actions must be filed electronically with the Attorney General's Office.
Certificate of merit: Current law requires any person bringing an action under Proposition 65 to provide a notice of alleged violation, 60 days before taking the action, to the Attorney General, including a certificate of merit. The certificate of merit shall state that the person executing the certificate has consulted with one or more persons with relevant and appropriate experience or expertise who has reviewed facts, studies, or other data regarding the exposure to the listed chemical that is the subject of the action, and that, based on that information, the person executing the certificate believes there is a reasonable and meritorious case for the private action. Additionally, factual information sufficient to establish the basis of the certificate of merit must be attached to the certificate that is served on the Attorney General. AB 1621 also requires that the person bringing the action under Proposition 65 must provide the certificate of merit and factual information included in the certificate of merit, to the alleged violator at the same time the Attorney General is served with the 60 day notice of intent to bring an action and certificate of merit.
Recent changes to Proposition 65 warning requirements: Since the original warning requirements took effect in 1988, most Proposition 65 warnings simply state that a chemical is present that causes cancer or reproductive harm, but the warning does not identify the chemical or provide specific information about how a person may be exposed or ways to reduce or eliminate exposure to it. New OEHHA regulations, adopted in August 2016 and that will take full effect in August 2018, change the warning requirements in several important ways. The new warnings for consumer products will: need to say the product "can expose you to" a Proposition 65 chemical rather than saying the product "contains" the chemical; need to name at least one chemical listed on the Proposition 65 list; need to provide the internet address for OEHHA’s new Proposition 65 warnings website which provides additional information about the health effects of the chemicals on the Proposition 65; and need to include a triangular yellow warning symbol.
This bill is in conflict with another bill: AB 1621 and AB 1583 are amending the same section of law, however the two bills have different approaches. AB 1621 seeks to provide the alleged violator of Proposition 65 with the certificate of merit and the factual basis behind the certificate of merit prior to the lawsuit being filed. AB 1621 also seeks to award attorney’s fees, presumably from the plaintiff, to the defendant if the defendant prevails in court. However, AB 1583 requires the Attorney General, upon reviewing the factual information and conferring with the noticing party and believing that there is not merit to the action, to serve a letter to the noticing party and the alleged violator that the Attorney believes there is not merit to the action. Given this conflict, the Committee may wish to consider if one bill, rather than both bills, should proceed forward.
Under current law, before a person can take an action they must provide a certificate of merit, including factual information forming the basis for the certificate to the Attorney General. The Attorney General reviews these notices, including the factual information provided, and if the information warrants can send a letter to the party bringing the action that the Attorney General believes there is not sufficient merit to bring the action. AB 1621 also includes the additional step of requiring this certificate of merit, including the factual information, provided to the alleged violator, before the action is actually filed. Usually, once an action is filed and parties are in court, both parties present evidence to back up their case, however, AB 1621 changes that dynamic by requiring the alleged violator to receive evidence prior to formally having an action filed against it. This could potentially allow a violator to correct the violation prior to the action being filed. By providing potential violators of Proposition 65 with this extra time, AB 1621 could be removing an incentive for businesses to comply with Proposition 65 until they have been served a notice.
Related legislation:
1) AB 1583 (Chau). Requires the Attorney General, after reviewing the certificate of merit, including the factual basis supporting the certificate of merit, if she or he finds that there is not merit to the action, to serve a letter to the noticing party and the alleged violator that the Attorney General believes there is not merit to the action. This bill is scheduled to be heard in the Assembly Environmental Safety and Toxic Materials Committee on April 4, 2017.
2) AB 1252 (Jones, 2015). Would have prohibited any person from bringing an enforcement action against a company that employs 25 people or less for failure to provide a warning for an exposure to a chemical known to the state to cause cancer or reproductive toxicity, in violation of Proposition 65, unless certain conditions are met. This bill was held in the Assembly Committee on Environmental Safety and Toxic Materials.
3) AB 2361 (Jones, 2014). Would have prohibited any person from bringing an enforcement action against a company that employs 25 people or less for failure to provide a warning for an exposure to a chemical known to the state to cause cancer or reproductive toxicity, in violation of Proposition 65, unless certain conditions are met. This bill was held in the Assembly Committee on Environmental Safety and Toxic Materials.
4) AB 227 (Gatto, Chapter 581 Statutes of 2013). Changes the enforcement provisions of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) by limiting recovery by private citizen enforcement action for specified types of exposure to chemicals causing cancer, or birth defects, or other reproductive harm, in those circumstances when the failure to provide clear and reasonable warnings has been remedied and a penalty has been paid.
Double-referral: Should this bill pass the Assembly Environmental Safety and Toxic Materials Committee, it will be re-referred to the Assembly Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
California Chamber of Commerce
Opposition
Breast Cancer Prevention Partners
California Healthy Nail Salon Collaborative
CALPIRG
Center for Environmental Health
CHANGE Coalition
Clean Water Action
Consumer Attorneys of California
Environmental Working Group
Physicians for Social Responsibility-San Francisco Bay Chapter
Analysis Prepared by: Josh Tooker / E.S. & T.M. /
Date of Hearing: April 4, 2017
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Bill Quirk, Chair
ABPCA Bill Id:AB 1621 (
Author:Travis Allen) – As Amended Ver:March 30, 2017
SUBJECT: Proposition 65: enforcement: private actions
SUMMARY: Requires anyone bringing an action under Proposition 65 to provide the certificate of merit that is required to be provided to the Attorney General, to the alleged violator. Specifically, this bill:
1) Requires anyone bringing an action under Proposition 65 to provide the certificate of merit and the factual information forming the basis for the certificate of merit, that is already required to be provided to the Attorney General as part of the 60 day notice of intent to bring an action, to the alleged violator.
2) Authorizes a court to award reasonable attorney’s fees to a defendant who has prevailed in a final determination of the action.
EXISTING LAW:
- Enacts the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) which prohibits a person in the course of doing business from knowingly discharging or releasing a chemical known to the state to cause cancer or reproductive toxicity into water or onto or into land where such chemical passes or probably will pass into any source of drinking water. (HSC § 25249.5)
- Prohibits a person in the course of doing business from knowingly and intentionally exposing any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual. (HSC § 25249.6)
- Provides that any person who violates the above provisions may be enjoined in any court of competent jurisdiction and shall be liable for a civil penalty not to exceed $2,500 per day for each violation in addition to any other penalty established by law. (HSC § 25249.7)
- Provides for a specified course of remediation for lawsuits alleging a violation of the clear and reasonable warning requirement for four specified exposures (lawfully permitted alcoholic beverages; chemicals resulting from food or beverage preparation; environmental tobacco smoke on premises where smoking is permitted; and, engine exhaust in parking facilities, as specified). Prohibits the person who files an action from exposure from doing so until 14 days after she or he has served the alleged violator with a notice of alleged violation. Authorizes the person who served the notice of violation to file an action if the alleged violator failed to correct the alleged violation or failed to pay a civil penalty of $500. (HSC § 25249.7)
- Requires the Governor to cause a list to be published of those chemicals known to the state to cause cancer or reproductive toxicity, and to cause such list to be revised and republished in light of additional knowledge at least once per year. (HSC § 25249.8)
- Exempts a business from discharge and release prohibitions for twenty months subsequent to the listing of the chemical in question on the Proposition 65 list. Exempts a business from discharge and release prohibitions if the discharge or release is lawful and will not cause any significant amount of the discharged or released chemical to enter any source of drinking water. (HSC § 25249.9)
- Exempts a business from the warning requirement in cases of federal preemption, for 12 months subsequent to the listing of the chemical in question on the list, and for an exposure for which the person responsible can show poses no significant risk, as specified. (HSC § 25249.6)
- Authorizes amendments to Proposition 65, provided that they are passed in each house of the Legislature by a two-thirds vote and further the purposes of Proposition 65. (Initiative Measure, Proposition 65, Sec. 7, Nov. 4, 1986.)
FISCAL EFFECT: Unknown.
COMMENTS:
Proposition 65: In 1986, California voters approved a ballot initiative, the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly referred to as Proposition 65, to address their concern that "hazardous chemicals pose a serious potential threat to their health and well-being, [and] that state government agencies have failed to provide them with adequate protection…" Proposition 65 requires the state to publish a list of chemicals known to cause cancer or birth defects or other reproductive harm. This list, which must be updated at least once a year, currently includes approximately 800 chemicals. The Office of Environmental Health Hazard Assessment (OEHHA) administers the Proposition 65 program, including evaluating all currently available scientific information on substances considered for placement on the Proposition 65 list.
Under Proposition 65, businesses in California are required to provide a "clear and reasonable" warning before knowingly and intentionally exposing anyone to a Proposition 65-listed chemical. Warnings can be made in many ways, including by labeling a consumer product, posting signs, distributing notices, or publishing notices in a newspaper. Once a chemical is listed, businesses have 12 months to comply with warning requirements.
Proposition 65 also prohibits companies that do business within California from knowingly discharging listed chemicals into sources of drinking water. Once a chemical is listed, businesses have 20 months to comply with the discharge prohibition.
Businesses with less than 10 employees and government agencies are exempt from Proposition 65’s warning requirements and prohibition on discharges into drinking water sources. Businesses are also exempt from the warning requirement and discharge prohibition if the exposures they cause are so low as to create no significant risk of cancer or birth defects or other reproductive harm.
Enforcement of Proposition 65: The California Attorney General’s Office enforces Proposition 65. Any district attorney or city attorney (for cities whose population exceeds 750,000) may also enforce Proposition 65. In addition, any individual acting in the public interest may enforce Proposition 65 by filing a lawsuit against a business alleged to be in violation of this law. Lawsuits have been filed by the Attorney General’s Office, district attorneys, consumer advocacy groups, private citizens, and law firms. Penalties for violating Proposition 65 by failing to provide warning notices can be as high as $2,500 per violation per day. State law requires any person suing "in the public interest" to enforce Proposition 65, to notify the Attorney General of the lawsuit and outcome of the case. All reports on Proposition 65 private actions must be filed electronically with the Attorney General's Office.
Certificate of merit: Current law requires any person bringing an action under Proposition 65 to provide a notice of alleged violation, 60 days before taking the action, to the Attorney General, including a certificate of merit. The certificate of merit shall state that the person executing the certificate has consulted with one or more persons with relevant and appropriate experience or expertise who has reviewed facts, studies, or other data regarding the exposure to the listed chemical that is the subject of the action, and that, based on that information, the person executing the certificate believes there is a reasonable and meritorious case for the private action. Additionally, factual information sufficient to establish the basis of the certificate of merit must be attached to the certificate that is served on the Attorney General. AB 1621 also requires that the person bringing the action under Proposition 65 must provide the certificate of merit and factual information included in the certificate of merit, to the alleged violator at the same time the Attorney General is served with the 60 day notice of intent to bring an action and certificate of merit.
Recent changes to Proposition 65 warning requirements: Since the original warning requirements took effect in 1988, most Proposition 65 warnings simply state that a chemical is present that causes cancer or reproductive harm, but the warning does not identify the chemical or provide specific information about how a person may be exposed or ways to reduce or eliminate exposure to it. New OEHHA regulations, adopted in August 2016 and that will take full effect in August 2018, change the warning requirements in several important ways. The new warnings for consumer products will: need to say the product "can expose you to" a Proposition 65 chemical rather than saying the product "contains" the chemical; need to name at least one chemical listed on the Proposition 65 list; need to provide the internet address for OEHHA’s new Proposition 65 warnings website which provides additional information about the health effects of the chemicals on the Proposition 65; and need to include a triangular yellow warning symbol.
This bill is in conflict with another bill: AB 1621 and AB 1583 are amending the same section of law, however the two bills have different approaches. AB 1621 seeks to provide the alleged violator of Proposition 65 with the certificate of merit and the factual basis behind the certificate of merit prior to the lawsuit being filed. AB 1621 also seeks to award attorney’s fees, presumably from the plaintiff, to the defendant if the defendant prevails in court. However, AB 1583 requires the Attorney General, upon reviewing the factual information and conferring with the noticing party and believing that there is not merit to the action, to serve a letter to the noticing party and the alleged violator that the Attorney believes there is not merit to the action. Given this conflict, the Committee may wish to consider if one bill, rather than both bills, should proceed forward.
Under current law, before a person can take an action they must provide a certificate of merit, including factual information forming the basis for the certificate to the Attorney General. The Attorney General reviews these notices, including the factual information provided, and if the information warrants can send a letter to the party bringing the action that the Attorney General believes there is not sufficient merit to bring the action. AB 1621 also includes the additional step of requiring this certificate of merit, including the factual information, provided to the alleged violator, before the action is actually filed. Usually, once an action is filed and parties are in court, both parties present evidence to back up their case, however, AB 1621 changes that dynamic by requiring the alleged violator to receive evidence prior to formally having an action filed against it. This could potentially allow a violator to correct the violation prior to the action being filed. By providing potential violators of Proposition 65 with this extra time, AB 1621 could be removing an incentive for businesses to comply with Proposition 65 until they have been served a notice.
Related legislation:
1) AB 1583 (Chau). Requires the Attorney General, after reviewing the certificate of merit, including the factual basis supporting the certificate of merit, if she or he finds that there is not merit to the action, to serve a letter to the noticing party and the alleged violator that the Attorney General believes there is not merit to the action. This bill is scheduled to be heard in the Assembly Environmental Safety and Toxic Materials Committee on April 4, 2017.
2) AB 1252 (Jones, 2015). Would have prohibited any person from bringing an enforcement action against a company that employs 25 people or less for failure to provide a warning for an exposure to a chemical known to the state to cause cancer or reproductive toxicity, in violation of Proposition 65, unless certain conditions are met. This bill was held in the Assembly Committee on Environmental Safety and Toxic Materials.
3) AB 2361 (Jones, 2014). Would have prohibited any person from bringing an enforcement action against a company that employs 25 people or less for failure to provide a warning for an exposure to a chemical known to the state to cause cancer or reproductive toxicity, in violation of Proposition 65, unless certain conditions are met. This bill was held in the Assembly Committee on Environmental Safety and Toxic Materials.
4) AB 227 (Gatto, Chapter 581 Statutes of 2013). Changes the enforcement provisions of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) by limiting recovery by private citizen enforcement action for specified types of exposure to chemicals causing cancer, or birth defects, or other reproductive harm, in those circumstances when the failure to provide clear and reasonable warnings has been remedied and a penalty has been paid.
Double-referral: Should this bill pass the Assembly Environmental Safety and Toxic Materials Committee, it will be re-referred to the Assembly Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
California Chamber of Commerce
Opposition
Consumer Attorneys of California
Analysis Prepared by: Josh Tooker / E.S. & T.M. /
Bill Author
Bill Co-Author(s):