California Assemblyman Bill Quirk (D-Hayward) recently invited a panel of experts to discuss recent changes to Proposition 65 regulations at an environmental safety and toxic materials (ESTM) oversight hearing that also discussed new changes to the 30-year law scheduled to take effect in August 2018.
Experts from various industries discussed the various impacts, both good and bad, of the initiative whose aim is to reduce the levels of toxic chemicals released into the environment since its adoption and implementation in 1986 as the Safe Drinking Water and Toxic Enforcement Act.
Proposition 65 requires the state to publish a list of chemicals known to cause cancer or birth defects and other reproductive or developmental harm. The law also mandates businesses to provide “clear and reasonable warnings to the public before knowingly and intentionally exposing anyone to a Proposition 65-listed chemical or substance.
In August 2016 California’s Office of Environmental Health Hazard Assessment (OEHHA) adopted new warning regulations that take effect in August 2018. The new regulations require businesses to disclose the identity of at least one chemical to consumers that prompted the warning and also display a triangular yellow warning symbol.
“We are at a point where stakeholders are a year into fighting over regulations and a year before they will be fighting over enforcement,” University of California-Berkeley Law Clinic director Claudia Polsky told the panel. “The law always needs to be tweaked but its design is fundamentally sound and does much more good than harm in improving public health.
“Proposition 65 has more of a public relations problem than a substantive problem, she added. “Its flaws are highly public while successes are relatively unknown. And this is from the perspective of someone who once worked to enforce Proposition 65. Polsky was a Deputy Attorney General for many years before taking her position with the University of California-Berkeley Law Clinic.
OEHHA director Lauren Zeise said approximately 900 chemical compounds and substances are on the agency’s list of listed chemicals. “Our job is to implement, not enforce, the laws,” she said.
However, it is the enforcement mechanism that is the most controversial aspect of Proposition 65.
John Doherty, President/CEO of the Civil Justice Association of California observed that the way enforcement is carried out by bounty hunter plaintiffs could be part of the problem.
“Promises made by proponents of this law that claims it won’t contain surprise anyone and applied only to businesses knowingly and intentionally releasing listed chemicals in the environment have not come true,” he said.
Doherty notes that records from the attorney general’s records show that the millions of dollars paid out in settlements have overwhelmingly gone toward attorney fees as opposed to funding the activities of OEHHA as it was originally intended to.
While Doherty’s organization believes in the values of Proposition 65 he notes that complying with the statute is more difficult than it should be, and that aspect should be fixed.
The hearing was held shortly before both chambers of the State legislature unanimously voted to enact AB 1583, a Proposition 65 reform bill that grants defendants more defenses to respond to Proposition 65 enforcement actions. It remains to be seen what impact the passage of the bill will have in preventing abusive litigation practices in the future.