BILL ANALYSIS Ó
AB 227
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Jerry Hill, Chair
2013-2014 Regular Session
BILL NO: AB 227
AUTHOR: Gatto
AMENDED: May 8, 2013
FISCAL: Yes HEARING DATE: June 19, 2013
URGENCY: Yes CONSULTANT: Rachel Machi
Wagoner
SUBJECT : PROPOSITION 65: ENFORCMENT
SUMMARY :
Existing law , under the Safe Drinking Water and Toxic Enforcement
Act of 1986 (Proposition 65):
1) 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, has
grown to include approximately 800 chemicals since it was
first published in 1987.
2) Requires businesses to notify Californians about significant
amounts of chemicals in the products they purchase, in their
homes or workplaces, or that are released into the
environment.
3) Prohibits California businesses from knowingly discharging
significant amounts of listed chemicals into sources of
drinking water.
4) Authorizes the Office of Environmental Health Hazard
Assessment (OEHHA) to administer the Proposition 65 program
and evaluate all currently available scientific information on
substances considered for placement on the Proposition 65
list.
This bill : Changes the enforcement provisions of Proposition.
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Specifically, this bill :
1)Prohibits any person who serves a notice of alleged violation,
as specified, from filing an action for exposure against the
alleged violator, or recovering from the alleged violator in a
settlement any payment in lieu of penalties or any
reimbursement for costs and attorney's fees, if ALL the
following conditions are met:
a) The notice was served on or after the effective date of
this statute and alleges that the alleged violator failed to
provide clear and reasonable warning as required under
Proposition 65 regarding:
i) An exposure to alcoholic beverages, or to a chemical
known to cause cancer or reproductive toxicity to the
extent the chemical is formed on the alleged violator's
premises by necessary preparation of food or beverages
which are sold on the alleged violator's premises for
immediate consumption;
ii) 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; or
iii) An exposure to chemicals known 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.
b) Within 14 days after service of the notice, the alleged
violator has:
i) Corrected the alleged violation;
ii) Paid a civil penalty for the alleged clear and
reasonable warnings violation in the amount of $500, to be
adjusted annually to reflect any increases in the cost of
living in California, as indicated by the annual average
of the California Consumer Price Index, per facility or
premises where the alleged violation occurred, of which
75% shall be deposited in the Safe Drinking Water and
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Toxic Enforcement Fund, and 25% shall be paid to the
person that served the notice of violation; and
iii) Provided the person that served the notice a written
statement, signed under penalty of perjury, that fully
describes the actions taken to correct the alleged
violation and attaches a true and correct copy of any
warning provided as part of such actions.
c) The alleged violator has not been served with a
Proposition 65 notice for failure to provide clear and
reasonable warning within the previous five years for
failure to provide clear and reasonable warning about the
same exposure in the same facility or on the same premises.
2)Provides that any such notice subject shall include a clear and
reasonable description of the terms in #1, and provides that
the lead agency may prescribe specific language for inclusion
in the notice that meets this requirement.
3)Specifies that in the event of a dispute over whether a
Proposition 65 enforcement action is barred by this statute the
alleged violator shall bear the burden of proving the
applicability of the new protections from liability. Upon the
conclusion of an enforcement action, if the trial court
determines that the alleged violator has prevailed on the
affirmative defense, the court may, upon motion of that alleged
violator or upon the court's own motion, review the basis for
the belief of the plaintiff that the action was allowable.
4)Provides that nothing in the act shall 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 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.
5)Finds and declares that the newly created limitation on
Proposition 65 enforcement actions are necessary to further the
purposes of Proposition 65 in terms of speed of compliance and
reasonableness as contemplated by Proposition 65.
6)Finds and declares, further, that the changes to the current
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statutes are necessary to further the purposes of the intent of
fairness contemplated by Proposition 65 as evinced by the
fairness factors.
7)Specifies that this act is an urgency statute, allowing this
bill to take effect immediately.
COMMENTS :
1)Purpose of 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 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 OEHHA,
the agency that oversees the listing of carcinogens and
reproductive toxicants, Proposition 65's warning requirement
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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 manufacturers 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,
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.
6)Prior amendments to Proposition 65 . Since passage of
Proposition 65, the Legislature has amended Proposition 65 to
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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.
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.
7)Conflicting measure . The provisions of this measure conflict
with SB 650 (Lieu). An amendment adding double-jointing
language is necessary to avoid chaptering out of one of the
measures.
8) Double Referral to Senate Judiciary Committee . If this
measure is approved by this committee, the do pass motion must
include the action to re-refer the bill to the Senate
Judiciary Committee.
SOURCE : Author
SUPPORT : Air Conditioning Trade Association
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American Chemistry Council
American Coatings Association
Apartment Association, California Southern Cities
Association of Home Appliance Manufacturers
BIOCOM
California Apartment Association
California Assisted Living Association
California Association of Health Facilities
California Association of Winegrape Growers
California Automotive Business Coalition
California Bus Association
California Business Properties Association
California Chamber of Commerce
California Citizens Against Lawsuit Abuse
California Construction & Industrial Materials
Association
California Craft Brewers Association
California Framing Contractors Association
California Grocers Association
California Healthcare Institute
California Hotel and Lodging Association
California Independent Grocers Association
California Independent Oil Marketers Association
California Independent Petroleum Association
California League of Food Processors
California Manufacturers and Technology
Association
California Metals Coalition
California Restaurant Association
California Retailers Association
California Service Station & Auto Repair
Association
California Travel Association
Camarillo Chamber of Commerce
Carpentaria Valley Chamber of Commerce
Carson Chamber of Commerce
Chambers of Commerce Alliance of Ventura and Santa
Barbara Counties
Civil Justice Association of California
Clovis Chamber of Commerce
Consumer Healthcare Products Association
Consumer Specialty Products Association
Culver City Chamber of Commerce
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Duarte Chamber of Commerce
East Bay Rental Housing Association
El Segundo Chamber of Commerce
Family Winemakers of California
Fresno Chamber of Commerce
Fullerton Chamber of Commerce
Garden Grove Chamber of Commerce
Goleta Valley Chamber of Commerce
Greater Conejo Valley Chamber of Commerce
Greater Riverside Chamber of Commerce
Harbor City/Harbor Gateway Chamber of Commerce
Hawthorne Chamber of Commerce
Hermosa Beach Chamber of Commerce
Irwindale Chamber of Commerce
Lawndale Chamber of Commerce
LAX Coastal Chamber of Commerce
Lomita Chamber of Commerce
Manhattan Beach Chamber of Commerce
Moorpark Chamber of Commerce
National Association of Theatre Owners of CA/NV
National Federation of Independent Business
NOR CAL Rental Property Association
Ojai Chamber of Commerce
Orange County Business Council
Oxnard Chamber of Commerce
Palm Desert Chamber of Commerce
Palo Verdes Peninsula Chamber of Commerce
Plumbing-Heating-Cooling Contractors Association
of
California
Port Hueneme Chamber of Commerce
Rancho Cordova Chamber of Commerce
Redondo Beach Chamber of Commerce
San Fernando Valley Chamber of Commerce
San Gabriel Valley Legislative Coalition of
Chambers
San Gabriel Valley Regional Chamber of Commerce
San Pedro Chamber of Commerce
Santa Barbara Chamber of Commerce
Santa Clarita Chamber of Commerce
Santa Paula Chamber of Commerce
Simi Valley Chamber of Commerce
South Bay Association of Chambers of Commerce
Thousand Oaks Chamber of Commerce
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Torrance Chamber of Commerce
United Chambers of San Fernando Valley
Valley Industry & Commerce Association
Ventura Chamber of Commerce
Visalia Chamber of Commerce
West Coast Lumber and Building Material
Association
Western Electrical Contractors Association
Wilmington Chamber of Commerce
OPPOSITION : None on file