A Los Angeles area Assembly member has introduced legislation that if passed may help to level the playing field for companies that receive Proposition 65 notices of violation.
Assemblyman Ed Chau (D-Arcadia) has introduced AB 1583, a bill that would require Proposition 65 citizen enforcers to provide the factual basis underpinning their certificates of merit.
A certificate of merit is a document that citizen enforcers must submit to the state attorney general's office prior to serving a 60-day notice of violation under Proposition 65
The certificate of merit must attest that the person issuing the certificate has consulted with one or more persons with relevant and appropriate expertise who has reviewed test results, studies and other relevant facts or data regarding the exposure to the listed chemical that is the subject of the action, and based on that information, the person believes there is a reasonable and meritorious case for the private action. Current 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.
Assemblyman Chau's legislation would require the same factual information to be served on the alleged violator(s).
Current law allows companies that allegedly violate the statute to move the trial court to review the basis for the certificate of merit only after the conclusion of an enforcement action brought in the public interest.
Part of the Court's review requires that the information in the certificate of merit must be disclosed to the court in an in-camera proceeding where the moving party is not present.
If the court finds there is no credible factual basis for the certified belief that an exposure to a listed chemical has occurred or was threatened, the enforcement action is deemed by the court as "frivolous."
Assemblyman Chau's bill would make the factual basis of the violation available upon service, and also change the law to make these facts discoverable as well.
The Assemblyman learned that many of his small business constituents had been served Proposition 65 notices of violation. He determined that most of the business owners believed that their only alternative to survive was to settle with the citizen enforcers early. His bill was designed to give his constituents an equal footing when served with a notice of violation or a complaint. Following his introduction of the bill, Assemblyman Chau told reporters that the bill would help to prevent frivolous Proposition 65 litigation if it is passed.