BILL ANALYSIS Ó
AB 543
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Date of Hearing: April 28, 2015
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Luis Alejo, Chair
AB 543
(Quirk) - As Amended April 6, 2015
SUBJECT: Proposition 65: exposure
SUMMARY: Provides that businesses may complete an exposure
assessment to determine if a Proposition 65 warning is required.
Specifically, this bill:
1)Provides that a person, in the course of doing business, does
not knowingly and intentionally expose an individual to a
chemical known to the state to cause cancer or reproductive
toxicity if there is a qualified exposure assessment for the
likely exposure that concludes that the exposure to the
chemical is at a level that does not require a warning.
2)Provides that a qualified exposure assessment must be
conducted by a qualified scientist in accordance with
regulations adopted by the Office of Environmental Health
Hazard Assessment (OEHHA) that are relevant to the alleged
exposure.
3)Requires that the exposure assessment was completed prior to
receiving notice of an alleged exposure violation.
4)Defines a qualified scientist as a person who has completed a
masters, doctoral, or medical doctor degree and has experience
in an area specializing in any of the following:
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a) Epidemiology;
b) Oncology;
c) Pathology;
d) Medicine;
e) Public health;
f) Biology;
g) Toxicology;
h) Developmental toxicology;
i) Reproductive toxicology;
j) Teratology; or,
aa) Environmental chemistry.
5)Requires the qualified scientist to demonstrate ongoing
expertise in the conduct of work relevant to the evaluation of
exposure to carcinogenic chemicals or chemicals that pose
reproductive or developmental hazards.
EXISTING LAW: Under Proposition 65:
1)Prohibits a person, in the course of doing business, from
knowingly discharging or releasing a chemical known to the
state to cause cancer or reproductive toxicity into any source
of drinking water.
2)Prohibits a person, in the course of doing business, from
knowingly and intentionally exposing any individual to a
chemical known to the state to cause cancer or reproductive
toxicity without first giving clear and reasonable warning to
such individual.
3)Provides that any person who violates the above provisions may
be enjoined in any court of competent jurisdiction and shall
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be liable for a civil penalty not to exceed $2,500 per day for
each violation in addition to any other penalty established by
law.
4)Provides for a specified course of remediation for lawsuits
alleging a violation of the clear and reasonable warning
requirement for four specified exposures (lawfully permitted
alcoholic beverages; chemicals resulting from food or beverage
preparation; environmental tobacco smoke on premises where
smoking is permitted; and, engine exhaust in parking
facilities, as specified). Prohibits the person who files an
action from exposure from doing so until 14 days after she or
he has served the alleged violator with a notice of alleged
violation. Authorizes the person who served the notice of
violation to file an action if the alleged violator failed to
correct the alleged violation or failed to pay a civil penalty
of $500.
5)Exempts a business from discharge and release prohibitions for
twenty months subsequent to the listing of the chemical in
question on the Proposition 65 list. Exempts a business from
discharge and release prohibitions if the discharge or release
is lawful and will not cause any significant amount of the
discharged or released chemical to enter any source of
drinking water.
6)Exempts a business from the warning requirement in cases of
federal preemption, for 12 months subsequent to the listing of
the chemical in question on the list, and for an exposure for
which the person responsible can show poses no significant
risk, as specified.
7)Authorizes amendments to Proposition 65, provided that they
are passed in each house of the Legislature by a two-thirds
vote and further the purposes Proposition 65.
FISCAL EFFECT: Not known.
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COMMENTS:
Need for the bill: According to the author, "Businesses commonly
provide warnings on their products and facilities even if they
do not cause a Prop 65 exposure at levels requiring a warning.
Businesses often provide such warnings because: (1) the law
permits them; and (2) the law currently provides little guidance
regarding how exposure assessments must be conducted and the
role they play in guiding a business's decision about whether or
not to warn. Due to this uncertainty and the expense involved
in defending these determinations, many businesses choose to
provide warnings where the law may not require such warnings.
Prop 65 permits this approach, which in many cases is the only
reasonable compliance approach for a responsible business.
However, there are significant public health consequences to
overwarning, including the increased likelihood that
Californians will overlook, ignore, or give less credence to
other warnings where risks to individuals may be more immediate
and potential consequences more extreme."
Safe harbor levels for businesses: OEHHA develops numerical
guidance levels, known as "safe harbor numbers" for determining
whether a warning is necessary or whether discharges of a
chemical into drinking water sources are prohibited. However, a
business may choose to provide a warning simply based on its
knowledge, or assumption, about the presence of a listed
chemical without attempting to evaluate the levels of exposure.
Because businesses do not file reports with OEHHA regarding what
warnings they have issued and why, OEHHA is not able to provide
further information about any particular warning.
OEHHA has developed safe harbor levels to guide businesses in
determining whether a warning is necessary or whether discharges
of a chemical into drinking water sources are prohibited. A
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business has "safe harbor" from Proposition 65 warning
requirements or discharge prohibitions if exposure to a chemical
occurs at or below these levels. These safe harbor levels
consist of No Significant Risk Levels for chemicals listed as
causing cancer and Maximum Allowable Dose Levels for chemicals
listed as causing birth defects or other reproductive harm.
OEHHA has established over 300 safe harbor levels to date and
continues to develop more levels for listed chemicals.
Safe use determination (SUD). A SUD is a written statement
issued by OEHHA, which interprets and applies Proposition 65 and
its implementing regulations to a specific set of facts in
response to a request by a business or a trade group. Requests
for SUDs seek OEHHA's determination whether an exposure or
discharge of a listed chemical resulting from specific business
actions or the average use of a specific product is subject to
the warning requirement or discharge prohibition. The SUD
determines if the discharge or exposure is at or below the safe
harbor number.
According to OEHHA, there have been fewer than 12 total requests
over the years, but there are currently five requests pending in
various stages of the process. There have been five other
requests that were withdrawn, either before formal submission of
the request or before the process were completed. Three SUD's
have been issued - one for saccharin and two for crystalline
silica. In addition, OEHHA issued an interpretive guidance
document for lead in fishing tackle instead of an official SUD.
OEHHA has also issued three informational letters that have
responded to some aspects of SUD requests.
The business can use the SUD document as a defense in a legal
action. The courts consider it persuasive but not conclusive
evidence. OEHHA is not aware of any case in which a plaintiff
has successfully challenged a defendant's reliance on an SUD.
Proposed regulatory action on the Proposition 65 warning
requirement: On March 7, 2014, OEHHA released a pre-regulatory
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package to reform Proposition 65, which includes enhancements to
the warning requirements and provides an opportunity for
retailers, only, with 25 or fewer employees to cure certain
minor warning violations, as specified, to avoid private
enforcement. Minor warning violations would include the
short-term absence of a sign or other warning materials that had
been previously provided, inadvertent obstruction of a warning
label or sign, or the interruption of an electronic device due
to software problems or internet connectivity issues. The
regulations specify that the opportunity to cure only exists
where the retail seller was previously in compliance with
Proposition 65; the violation is not the result of intentional
neglect or disregard for Proposition 65; unavoidable; corrected
within 24 hours of discovery or notification, or within 14 days
where software or equipment must be repaired or replaced; and,
not recurrent.
Argument in support: A coalition of business groups, including
the California Chamber of Commerce, voiced their support for the
bill and said, "Businesses may use a Proposition 65-listed
chemical without providing a warning so long as the exposure
does not exceed a specified threshold level. Notwithstanding
this so-called "safe harbor" from the warning requirement,
businesses often provide warnings on their products or
facilities out of an abundance of caution, even if no chemical
exposure is present or if the chemical exposure is occurring
below specified threshold levels. This is because if a business
rightfully and lawfully elects not to warn on the basis that its
scientific exposure assessment concludes that the exposure does
not exceed the threshold level, its risk of being sued is
actually greater than if it provides a warning unnecessarily."
Argument in opposition: According to The Center for
Environmental Health, "AB 543 would allow any company with
enough resources to hire an expert to conduct an exposure
assessment that determines that their product does not contain
levels sufficient to require warnings. OEHHA already conducts
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such assessments (called Safe Use Determinations) under current
law with stringent science and public input. But AB 543 would
allow these exposure assessments to be done by private companies
without public review and would make the results
unchallengeable. AB 543 could also lead to more litigation over
whether the exposure assessment was done in accordance with the
OEHHA implementing regulations under 25249.6(b)(1)."
Previous legislation:
1)AB 2738 (Committee on Environmental Safety and Toxic
Materials) (Chapter 828, Statutes of 2014). Includes
technical clean-up of the Proposition 65 provisions in AB 227
(Gatto, 2013).
2)AB 227 Gatto (Chapter 581, Statutes of 2013). For four
potential exposures (alcohol, food preparation, environmental
cigarette smoke, and vehicle exhaust, all in certain
contexts), provides for a specified course of remediation for
lawsuits alleging a violation of the clear and reasonable
warning requirement of Proposition 65.
REGISTERED SUPPORT / OPPOSITION:
Support
Advanced Medical Technology Association
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Agricultural Council of California
Alhambra Chamber of Commerce
Alliance of Automobile Manufacturers
American Apparel and Footwear Association
American Coatings Association
American Composite Manufacturers Association
American Frozen Foods Institute
American Herbal Products Association
American Home Furnishings Alliance
Associated Roofing Contractors of the Bay Area Counties, Inc.
Association of Home Appliance Manufacturers
Auburn Chamber of Commerce
Automotive Specialty Products Alliance
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Breen Color Concentrates
Building Owners and Managers Association of California
California Apartment Association
California Association of Boutique & Breakfast Inns
California Asian Pacific Chamber of Commerce
California Association of Health Facilities
California Association of Realtors
California Association of Winegrape Growers
California Attractions and Parks Association
California Business Properties Association
California Chamber of Commerce
California Cotton Ginners Association
California Cotton Growers Association
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California Farm Bureau Federation
California Furniture Manufacturers Association
California Hospital Association
California Hotel and Lodging Association
California League of Food Processors
California Manufacturers and Technology Association
California Metals Coalition
California Paint Council
California Restaurant Association
California Retailers Association
California Small Business Alliance
California Travel Association
Camarillo Chamber of Commerce
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Cerritos Regional Chamber of Commerce
Chamber of Commerce, Mountain View Chemical Industry Council of
California
Commercial Real Estate Development Association
Composite Panel Association
Consumer Electronics Association
Consumer Specialty Products Association
Council for Responsible Nutrition
El Centro Chamber of Commerce
Fashion Accessories Shippers Association
Frozen Potato Products Institute
Fullerton Chamber of Commerce
Gateway Chambers Alliance
Goleta Valley Chamber of Commerce
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Greater Riverside Chamber of Commerce
Greater San Fernando Valley Chamber of Commerce
Grocery Manufacturers Association
Industrial Environmental Association
Information Technology Industry Council
International Council of Shopping Centers
International Fragrance Association, North America
International Franchise Association
ISSA, the Worldwide Cleaning Industry Association
Lonseal
Metal Finishing Association of Northern California
Metal Finishing Association of Southern California
National Aerosol Association
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National Council of Textile Organizations
National Electrical Manufacturers Association
National Federation of Independent Businesses
National Shooting Sports Foundation
North American Home Furnishings Association
Orange Chamber of Commerce
Oxnard Chamber of Commerce
Palm Desert Area Chamber of Commerce
Personal Care Products Council
Plumbing Manufacturers International
Printing Industries of California
Redondo Beach Chamber of Commerce
Ripon Chamber of Commerce
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Rubber Manufacturers Association
San Diego Regional Chamber of Commerce
San Francisco Chamber of Commerce
Santa Clara Chamber of Commerce and Convention-Visitors Bureau
Santa Maria Valley Chamber of Commerce and Visitors Bureau
Simi Valley Chamber of Commerce
South Bay Association of Chambers of Commerce
Southwest California Legislative Council
Sporting Arms and Ammunition Manufacturers Institute
Styrene Information Research Center
The Art and Creative Materials Institute, Inc.
The Chamber of Commerce of the Santa Barbara Region
Torrance Area Chamber of Commerce
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Toy Industry Association
Travel Goods Association
West Coast Lumber and Building Materials Association
Western Agricultural Processors Association
Western Carwash Association
Western Growers Association
Western Plant Health Association
Writing Instrument Manufacturers Association
Opposition
As You Sow
Black Woman for Wellness
Breast Cancer Fund
CA Healthy Nail Salon Collaborative
California Labor Federation
California Teamster
Californians Against Waste
Californians for a Healthy & Green Economy
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Capobianco
Center for Environmental Health
Center on Race, Poverty & the Environment
Clean Water Action-California
Coalition for Clean Air
Consumer Attorneys of California
Environmental Working Group
Friends of the Earth
North America Worksafe
Pesticide Action Network
Physicians for Social Responsibility - Los Angeles
Physicians for Social Responsibility - San Francisco Bay Area
SoCalCOSH
Analysis Prepared by:Bob Fredenburg / E.S. & T.M. / (916)
319-3965