BILL ANALYSIS �
AB 227
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Date of Hearing: April 16, 2013
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Luis Alejo, Chair
AB 227 (Gatto) - As Amended: April 9, 2013
SUBJECT : Safe Drinking Water and Toxic Enforcement Act of
1986.
SUMMARY : This bill changes the enforcement provisions of the
Safe Drinking Water and Toxic Enforcement Act of 1986
(Proposition 65). Specifically, this bill :
1)Prohibits a Proposition 65 enforcement action by a person
acting in the public interest for a failure to provide clear
and reasonable warning of an exposure to a carcinogen or
reproductive hazard if the alleged violator has:
a) Corrected the violation within 14 days of the notice of
violation; and
b) Provides a written statement, signed under penalty of
perjury, that describes the corrective actions taken to
which is attached a copy of any posted warnings.
2)Makes a legislative finding that this bill furthers the
purposes of Proposition 65.
EXISTING LAW:
1)Provides, in accordance with Proposition 65, that no person in
the course of doing business shall knowingly and intentionally
expose any individual to a chemical known to the state to
cause cancer or reproductive toxicity without first giving
clear and reasonable warning. It also provides that no person
shall knowingly discharge or release those same chemicals into
any source of drinking water.
2)Provides certain exemptions from the requirements of
Proposition 65, including where the exposure or discharge
would pose no significant risk of cancer, or, for chemicals
that cause reproductive toxicity, would have no observable
effect at 1,000 times the level in question.
3)Permits enforcement of Proposition 65 through civil actions
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brought by the Attorney General, District Attorneys', and
certain city attorneys'. In addition, any person may bring an
action by first giving a notice to the alleged violator, the
Attorney General and any District Attorney in whose
jurisdiction the violation is alleged to have occurred. If
none of the authorized public prosecutors file an action
within sixty days, the person can commence a public interest
lawsuit. Persons filing actions in the public interest also
notify the Attorney General when they file a complaint, and
when the case reaches a settlement or judgment.
4)Establishes criteria to guide a court in assessing any civil
penalty awarded as a result of violating Proposition 65, such
as the nature and extent of a violation or the willfulness of
the violator's misconduct.
5)Provides that a public prosecutor, at his or her discretion,
may recover costs and attorney's fees on behalf of a private
party rendering assistance in a Proposition 65 case.
6)Provides that the Legislature may only amend Proposition 65
with a 2/3 vote of each house and the amendment must further
the purpose of the Proposition 65.
FISCAL EFFECT : Unknown
COMMENTS :
1)Need for the bill . According to the author, "This measure
intends to reduce or eliminate frivolous legal actions brought
under Proposition 65 where plaintiffs are seeking damages for
alleged violations that involve a retail business either
neglecting to have a sign posted, or posting in a manner that
isn't visible enough to the public. There has been a recent
wave of violation notices sent to businesses like bars,
restaurants and coffee shops, (places that must post signs
because of alcohol or byproducts of coffee roasting) because
of improperly posted signs or signs that were not up due to an
honest oversight. These are cases where the business owners
are not exposing customers to unknown, dangerous chemicals.
Rather, they are serving things like the aforementioned coffee
or alcohol and are more than happy to post the proper sign. "
2)Proposition 65 warning notice requirements . Under the
provisions of Proposition 65 businesses are required to
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provide a "clear and reasonable" warning before knowingly and
intentionally exposing anyone to a Proposition 65 listed
chemical. This warning can be given by a variety of means,
such as by labeling a consumer product, posting signs at the
workplace, distributing notices at a rental housing complex,
or publishing notices in a newspaper.
Businesses with less than 10 employees and government agencies
are exempt from Proposition 65's warning requirements and
prohibitions 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.
3)Effects of required Proposition 65 notice . According to the
California Office of Health Hazards Assessment, the agency
that oversees the listing of carcinogens and reproductive
toxicants, Proposition 65's warning requirement has provided
an incentive for manufacturers to remove listed chemicals from
their products. For example, trichloroethylene, which causes
cancer, is no longer used in most correction fluids;
reformulated paint strippers do not contain the carcinogen
methylene chloride; and toluene, which causes birth defects or
other reproductive harm, has been removed from many nail care
products. In addition, a Proposition 65 enforcement action
prompted manufacturers to decrease the lead content in ceramic
tableware and wineries to eliminate the use of lead-containing
foil caps on wine bottles.
4)Proposition 65 warning requirements for alcohol . California
has adopted regulations to implement the provisions of
Proposition 65. Among those regulations are special
provisions for public notices related to the hazards of
alcohol. Specifically, the regulations protect retailers from
enforcement actions and instead place that responsibility on
the liquor manufactures or distributors. The regulation
provides, "[f]or alcoholic beverages, the placement and
maintenance of the warning shall be the responsibility of the
manufacturer or its distributor at no cost to the retailer,
and any consequences for failure to do the same shall rest
solely with the manufacturer or its distributor, provided that
the retailer does not remove, deface, or obscure the requisite
signs or notices, or obstruct, interfere with, or otherwise
frustrate the manufacturer's reasonable efforts to post,
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maintain, or periodically replace said materials." 27 Cal.
Code Regs. 25603.3(e)(7).
5)Proposition 65 enforcement-persons acting in the public
interest . 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, and private
citizens and law firms. Penalties for violating Proposition
65 by failing to provide notices can be as high as $2,500 per
violation per day.
The proposed language of AB 227 may limit the general
effectiveness of Proposition 65 by limiting the potential for
enforcement actions by consumer advocacy groups and private
citizens. The prohibition on taking enforcement action would
apply to any person or business that has violated Proposition
65 by failing to provide the required clear and reasonable
notice. By effectively eliminating penalties or threat of
legal action, as currently provided by Proposition 65, by
persons in the public interest there may be less incentive for
businesses to prospectively comply with the warning
requirements of Proposition 65.
6)Prior amendments to Proposition 65 . Since that passage of
Proposition 65, the legislature has amended Proposition 65 to
address the concerns over private enforcement actions. Those
changes have included:
a) SB 1269 (Alpert), Chapter 599, Statutes of 1999,
requires that private plaintiffs filing actions in the
public interest notify the Attorney General when they file
a complaint and when the case reaches a settlement or
judgment. The Attorney General is required to collect
information on a reporting form that includes the amount of
settlement or civil penalty assessed, the financial terms
of settlement, and other information deemed appropriate by
the Attorney General. Any private plaintiff bringing an
action that is subject to a settlement must report to the
Attorney General the corrective action being taken. This
information is to be maintained by the Attorney General.
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b) SB 471 (Sher), Chapter 578, Statutes of 2001, requires
the notice in Proposition 65 cases challenging the adequacy
of warnings to include a certificate of merit which would
certify that the private plaintiff believes there is good
cause for the notice based on consultation with an
appropriate expert who has reviewed the information. If
the court finds that there was no credible factual basis
for the certificate, the action would be deemed frivolous
and subject to sanctions.
c) SB 1572 (Sher), Chapter 323, Statutes of 2002, clarifies
that a person settling an action arising from Proposition
65 must file a form with the Attorney General that includes
the names of the parties.
Arguments in Support : Among the supporters of AB 227, the
California Restaurant Association has provided an assessment of
the need for this bill. Specifically they assert, "Recently,
and of greatest concern, is the increase in lawsuits faced by
restaurants that have been targeted for allegedly failing to
display "clear and reasonable" warnings to consumers.
Restaurants are required to post a number of signs to comply
with Proposition 65. Each sign required under the regulation is
very prescriptive and may differ from one county to another.
For example, any establishment that allows smoking must post an
environmental exposure to substances such as tobacco smoke,
restaurants that serve distilled spirits, and other alcoholic
beverages must post a warning sign stating these beverages may
increase cancer risk, and during pregnancy can cause birth
defects. Not to mention, in San Francisco County, restaurants
must post all of their Proposition 65 warnings in Chinese,
Spanish and English.
Restaurants agree it is important to inform the public of
potential hazardous materials and post appropriate signage when
necessary. However, our industry has seen an increase in
frivolous lawsuits for signs that may have fallen down or are
posted in an area that is not considered highly visible. AB 227
will help reduce the inappropriate use of Proposition 65 and
restore it to its original intent of protecting consumers for
actual legit violations."
Augments in opposition: A coalition of environmentalists,
public health, and workplace safety groups, and consumer
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attorneys has voiced concerns over the provisions of AB 227.
Specifically they assert that, "by allowing violators an
opportunity to cure any violations without repercussion, the
bill will eliminate all incentives for businesses to comply with
Proposition 65. Similarly, AB 227 will eliminate incentives for
businesses to comply with Proposition 65 and protect
Californians from toxic chemicals. AB 227 would undermine the
protective and deterrent purposes of Proposition 65. With that
in mind, the bill runs afoul of the statute's requirement that
any amendments be in furtherance of the voters' public health
intentions in support of Proposition 65.
By barring enforcement action altogether, AB 227 also raises
serious separation-of-power and due-process issues. In a time
when consumers are increasingly concerned about the presence of
toxic chemicals in their air, food, water, and consumer
products, the legislature should protect Californians' right to
petition the courts for relief from unlawful exposures to those
chemicals. AB 227 does the opposite."
This bill is double referred to the Assembly Judiciary
Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Air Conditioning Trade Association
American Coatings Association
Apartment Association, California Southern Cities
BIOCOM
California Apartment Association
California Assisted Living Association
California Association of Health Facilities
California Automotive Business Coalition
California Business Properties Association
California Chamber of Commerce
California Citizens Against Lawsuit Abuse
California Construction & Industrial Materials Association
California Craft Brewers Association
California Dental Association
California Framing Contractors Association
California Grocers Association
California Hotel and Lodging Association
California Independent Grocers Association
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California Independent Oil Marketers Association
California Independent Petroleum Association
California Metals Coalition
California Restaurant Association
California Retailers Association
California Service Station & Auto Repair Association
Civil Justice Association of California
Clovis Chamber of Commerce
Consumer Specialty Products Association
Culver City Chamber of Commerce
Duarte Chamber of Commerce
East Bay Rental Housing Association
National Association of Theatre Owners of CA/NV
National Federation of Independent Business
NOR CAL Rental Property Association
Palm Desert Chamber of Commerce
Plumbing-Heating-Cooling Contractors Association of California
Rancho Cordova Chamber of Commerce
San Fernando Valley Chamber of Commerce
Simi Valley Chamber of Commerce
United Chambers of San Fernando Valley
Valley Industry & Commerce Association
Visalia Chamber of Commerce
Western Electrical Contractors Association
Opposition
Breast Cancer Action
Breast Cancer Fund
Californians for a Healthy and Green Economy
Center for Environmental Health
Clean Water Action California
Coalition for Clean Air
Consumer Attorneys of California
Consumer Federation of California
Environmental Law Foundation
Environmental Working Group
Pesticide Action Network North America
Sierra Club California
Analysis Prepared by : Bob Fredenburg / E.S. & T.M. / (916)
319-3965
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