BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 227|
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THIRD READING
Bill No: AB 227
Author: Gatto (D), et al
Amended: 8/30/13 in Senate
Vote: 27 - Urgency
SENATE ENVIRONMENTAL QUALITY COMMITTEE : 9-0, 6/19/13
AYES: Hill, Gaines, Calderon, Corbett, Fuller, Hancock,
Jackson, Leno, Pavley
SENATE JUDICIARY COMMITTEE : 7-0, 6/25/13
AYES: Evans, Walters, Anderson, Corbett, Jackson, Leno, Monning
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 72-0, 5/24/13 - See last page for vote
SUBJECT : Proposition 65: enforcement
SOURCE : Author
DIGEST : This bill changes the enforcement provisions of the
Safe Drinking Water and Toxic Enforcement Act of 1986
(Proposition 65).
Senate Floor Amendments of 8/30/13 shift the deadline for
calculating and publishing initial inflation-adjusted civil
penalty amount from January 1, 2019 to April 1, 2019.
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ANALYSIS :
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
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 60 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 the Legislature may only amend Proposition 65
with a two-thirds vote of each house and the amendment must
further the purpose of the Proposition 65.
This bill:
1.Requires a person filing an enforcement action in the public
interest for certain specified exposures to provide a notice
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in a specified proof of compliance form. 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, under the following conditions:
A. The notice was served on or after the effective date of
the act amending this section during the 2013-14 Regular
Session and alleges that the alleged violator failed to
provide clear and reasonable warning as required under
Proposition 65 regarding:
(1) An exposure to alcoholic beverages that are consumed
on the alleged violator's premises to the extent onsite
consumption is permitted by law.
(2) An exposure to a chemical known to the state to
cause cancer or reproductive toxicity in a food or
beverage prepared and sold on the alleged violator's
premises primarily intended for immediate consumption on
or off premises, to the extent of both of the following:
(i) The chemical was not intentionally added.
(ii) The chemical was formed by cooking or similar
preparation of food or beverage components necessary
to render the food or beverage palatable or to avoid
microbiological contamination.
(1) 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.
(2) An exposure to chemicals known to the state 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.
A. Within 14 days after service of the notice, the alleged
violator has:
(1) Corrected the alleged violation;
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(2) Paid a civil penalty for the alleged clear and
reasonable warnings violation in the amount of $500, to
be adjusted every five years, per facility or premises
where the alleged violation occurred, of which 75% shall
be deposited in the Safe Drinking Water and Toxic
Enforcement Fund, and 25% shall be paid to the person
that served the notice of violation. Requires the
Judicial Council, on April 1, 2019, and at each five-year
interval thereafter, to adjust that civil penalty, as
specified; and
(3) Notified, in writing, the person that served the
notice of the alleged violation, that the violation has
been corrected. The written notice must include the
notice of special compliance procedure and proof of
compliance form, as specified, which was provided by the
person serving notice of the alleged violation and which
shall be completed by the alleged violator as directed in
the notice.
A. The alleged violator shall deliver the civil penalty to
the person that served the notice of the alleged violation
within 30 days of service of that notice, and the person
that served the notice of violation shall remit the portion
of the penalty due to the Safe Drinking Water and Toxic
Enforcement Fund within 30 days of receipt of the funds
from the alleged violator.
1.Provides that nothing in this bill 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.
2.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.
3.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 the Proposition 65 as evinced by
the fairness factors.
Background
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.
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.
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, "for 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
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otherwise frustrate the manufacturer's reasonable efforts to
post, maintain, or periodically replace said materials."
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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 8/30/13)
Air Conditioning Trade Association
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
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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
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
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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
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
ARGUMENTS IN SUPPORT : According to the author, "This bill
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."
ASSEMBLY FLOOR : 72-0, 5/24/13
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Bigelow, Bloom,
Blumenfield, Bocanegra, Bonilla, Bradford, Brown, Buchanan,
Ian Calderon, Campos, Chau, Ch�vez, Chesbro, Conway, Cooley,
Dahle, Daly, Dickinson, Donnelly, Eggman, Fong, Fox, Frazier,
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Beth Gaines, Garcia, Gatto, Gomez, Gordon, Gorell, Gray,
Hagman, Hall, Harkey, Roger Hern�ndez, Jones, Jones-Sawyer,
Levine, Linder, Logue, Lowenthal, Maienschein, Mansoor,
Medina, Melendez, Mitchell, Morrell, Mullin, Muratsuchi,
Nazarian, Nestande, Olsen, Pan, Patterson, Perea, V. Manuel
P�rez, Quirk, Quirk-Silva, Rendon, Salas, Stone, Ting, Wagner,
Weber, Wieckowski, Williams, Yamada, John A. P�rez
NO VOTE RECORDED: Bonta, Grove, Holden, Skinner, Waldron, Wilk,
Vacancy, Vacancy
RM: ej 8/31/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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