A California Assembly member has introduced a Proposition 65 reform measure that if passed may have a significant impact on future Proposition 65 enforcement actions.
AB 543, introduced by Assemblyman Bill Quirk (D-Hayward) on Feb. 23, would amend Section 25249.6 of Proposition 65 to determine that a person in the course of doing business in California does not “knowingly and intentionally” expose individuals to a listed chemical or chemicals if the person or organization has conducted an exposure assessment that meets specific scientific and legal criteria.
Quirk’s bill provides that an exposure assessment must meet certain criteria for companies to establish they lack knowledge of a violation under Proposition 65 or an intent to expose.
1. The assessment has been conducted by, or under the supervision of, a qualified scientist in accordance with relevant Proposition 65 regulations.
2. The assessment evaluates the same chemical in or from the same source(s) that is the subject of an alleged violation, and concludes that no exposure is occurring that requires a warning; and
3. It is documented in writing, and is approved and signed by the qualified scientist before a person or company that commissioned the assessment is served with a 60-Day Notice of Violation.
Under the proposed legislation the term “Qualified scientist” means a person who meets all of the following requirements:
(1) He or she has completed a masters, doctoral, or medical doctor degree and has experience in an area specializing in any of the following:
(E) Public health.
(I) Developmental toxicology.
(J) Reproductive toxicology.
(L) Environmental chemistry.
He or she demonstrates ongoing expertise in the conduct of work relevant to the evaluation of exposure to chemicals, including carcinogenic chemicals or chemicals that pose reproductive or developmental hazards, using generally accepted and scientifically valid principles and methodologies.
The legislation, if passed would provide a statutory and science-based defense to enforcement actions, possibly curtailing the rampant trend of preemptive warnings. However, the low cost of posting warnings whether necessary or not will likely continue in companies focused on cutting costs.