BILL ANALYSIS �
AB 227
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 227 (Gatto)
As Amended September 5, 2013
2/3 vote. Urgency
-----------------------------------------------------------------
|ASSEMBLY: |72-0 |(May 24, 2013) |SENATE: |37-0 |(September 10, |
| | | | | |2013) |
-----------------------------------------------------------------
Original Committee Reference: E.S. & T.M.
SUMMARY : Changes the enforcement provisions of the Safe
Drinking Water and Toxic Enforcement Act of 1986 (Proposition
65) by limiting recovery by private citizen enforcement action
for specified types of exposure to chemicals causing cancer or
birth defects or other reproductive harm in those circumstances
when the failure to provide clear and reasonable warnings has
been remedied and a penalty has been paid.
The Senate amendments added the following:
1)Specify the form to be used to certify the compliance with the
public warnings and payment of penalties by the individual in
violation of the clear and reasonable warning requirement of
Proposition 65.
2)Require the Judicial Council to adjust the penalty fee
provision of the newly created enforcement provision of
Proposition 65 every five-years based on the change in the
annual California Consumer Price Index.
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
AB 227
Page 2
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 must
notify the Attorney General when they file a complaint, and
when the case reaches a settlement or judgment.
4)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 Proposition 65.
AS PASSED BY THE ASSEMBLY , this bill changed the enforcement
provisions of the Proposition 65. Specifically, this bill:
1)Prohibited any person who serves a notice of alleged violation
of Proposition 65 from filing an action for exposure against
the alleged violator under the following conditions:
a) The notice alleges that the alleged violator failed to
provide clear and reasonable warning as required under
Proposition 65 regarding:
i) An exposure to alcoholic beverages;
ii) An exposure 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;
iii) 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
iv) An exposure to chemicals known to cause cancer or
reproductive toxicity in engine exhaust, to the extent
AB 227
Page 3
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, 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; and
iii) Served on 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 notice
under Proposition 65 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)Provided that any notice subject to the subdivision above
shall include a clear and reasonable description of the terms
of the subdivision, and provides that the lead agency may
prescribe specific language for inclusion in the notice that
meets this requirement.
3)Specified 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.
AB 227
Page 4
4)Specified that this act is an urgency statute.
FISCAL EFFECT : According to the Assembly Appropriations
Committee this bill would result in minor non-reimbursable costs
to the extent the bill leads to allegations and convictions of
perjury. The bill would also have minor General Fund savings
from a reduction in court caseloads, and minor revenue from
civil penalties, 75% of which would go to the Proposition 65
enforcement fund.
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
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.
AB 227
Page 5
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,
maintain, or periodically replace said materials."
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.
AB 227
Page 6
Analysis Prepared by : Bob Fredenburg / E.S. & T.M. / (916)
319-3965
FN: 0002293