Handful of New Bills Introduced to Thwart Proposition 65 Abuses

Staff reporter

Four bills have been introduced in the state Legislature in the last month to reform the Safe Drinking Water and Toxic Enforcement Act of 1986, otherwise known as Proposition 65.

Prop 65, enacted to protect consumers from health risks caused by more than 500 carcinogens or toxins, requires businesses to post notices when those chemicals are present. It came under scrutiny recently after a handful of consumer attorneys allegedly abused the law by filing claims against automobile dealerships, nutritional supplement manufacturers and retailers selling candles or fire logs.

On Jan. 1, 2002, new regulations become effective requiring Prop 65 claimants to file "certificates of merit" with Attorney General Bill Lockyer's office.

"The certificate of merit really doesn't do anything because even if the Attorney General says you don't have merit, you can still go forward on your lawsuit," said Jeffrey Margulies, a partner at Parker Milliken Clark O'Hara & Samuelian PC.

The bills, still in committee, would add requirements to further weed out frivolous Prop 65 claims.

Assembly Bill 1380, introduced Feb. 21 by Robert Pacheco, R-City of Industry, would eliminate civil penalty awards for those bringing Prop 65 claims if the business makes a written offer to post a Prop 65 warning. Under AB 1380, Prop 65 claimants would also pay attorneys fees if a lawsuit's outcome does not result in a better enforcement of Prop 65 than the business' original written offer.

AB 1380 also requires that the settlement be approved by a court and made public by the Attorney General. After the settlement is approved, Prop 65 claimants cannot bring suits over the same violations, Margulies said.

AB 1176, introduced Feb. 21 by John Campbell, R-Irvine, and AB 1447, introduced the same day by Barbara Matthews, D-Stockton, include similar reforms.

Meanwhile, another bill, introduced by Assemblywoman Sally Lieber, D-San Jose, would impose stricter criminal penalties on businesses or individuals that dump toxic chemicals, including those under Prop 65 that potentially infiltrate drinking water.

Violators could be punished with fines of between $2,500 and $25,000 for each day of violation and one to three years of jail time. Companies with prior convictions of similar violations can be fined up to $1 million.

Lieber said she introduced the bill because the criminal penalties are necessary as deterrents to violating environmental regulations.

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