AB 1252
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Date of Hearing: April 14, 2015
ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
Luis Alejo, Chair
AB 1252 (Jones) – As Introduced February 27, 2015
SUBJECT: Proposition 65: enforcement
SUMMARY: Prohibits any person from bringing an enforcement action against a company that
employs 25 people or less for failure to provide a warning for an exposure to a chemical known
to the state to cause cancer or reproductive toxicity, in violation of Proposition 65, unless certain
conditions are met. Specifically, this bill:
1) Requires any person who serves a notice of alleged violation of the clear and reasonable
warning requirement of Proposition 65 upon a person who employs fewer than 25 employees
to complete and provide to the alleged violator a notice of the special compliance procedure
and proof of compliance form.
2) Prohibits any person who serves a notice of alleged violation upon a person who employs
fewer than 25 employees from filing an action for that exposure against the alleged violator,
or from recovering from the alleged violator in a settlement any payment in lieu of penalties
or any reimbursement for costs and attorney’s fees, if , within 14 days after service of the
notice, the alleged violator has done all of the following:
a) Corrected the alleged violation;
b) Agreed to pay a civil penalty for the alleged violation of the clear and reasonable warning
requirement of Proposition 65 of $500; and,
c) Notified, in writing and as specified, the person that served the notice of the alleged
violation that the violation has been corrected.
3) Requires the alleged violator to 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 to 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.
4) Specifies, in detail, the requirements of the notice required to be provided to an alleged
violator.
5) Makes a legislative finding that this act furthers the purposes of the Safe Drinking Water and
Toxic Enforcement Act of 1986.
EXISTING LAW: Under Proposition 65:
1) Prohibits a person in the course of doing business (defined as a business of 10 or more, per
Health and Safety Code (HSC) Code §25249.11) from knowingly discharging or releasing a
chemical known to the state to cause cancer or reproductive toxicity into water or onto or into
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land where such chemical passes or probably will pass into any source of drinking water.
(HSC § 25249.5)
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. (HSC § 25249.6)
3) Provides that any person who violates the above provisions may be enjoined in any court of
competent jurisdiction and shall 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. (HSC § 25249.7)
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.
(HSC § 25249.7)
5) Requires the Governor to cause a list to be published of those chemicals known to the state to
cause cancer or reproductive toxicity, and to cause such list to be revised and republished in
light of additional knowledge at least once per year. (HSC § 25249.8)
6) Exempts a business from discharge and release prohibitions for twenty months subsequent to
the listing of the chemical in question on the 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. (HSC §
25249.9)
7) 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. (HSC §
25249.6)
8) 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. (Initiative Measure,
Proposition 65, Sec. 7, Nov. 4, 1986.)
FISCAL EFFECT: Unknown.
COMMENTS:
Need for the bill: According to the author, "This bill provides small businesses with relief from
Proposition 65 litigation abuse. It will allow for businesses with between 10-25 employees, to
correct an enforcement action within 14 days after service notice. Proposition 65 has become a
boon for trial lawyers and the civic penalties pale in comparison to the amounts awarded for
attorney fees and costs. Currently Proposition 65 exempts businesses with less than 10
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employees however it does not account for other small businesses, particularly those that have
between 10-25employees. The current civic penalty is $2,500 per day for each violation. That
and the attorney fees that are added on top of that can be a devastating blow to a small business."
Proposition 65: In 1986, California voters approved a ballot initiative, Proposition 65, the Safe
Drinking Water and Toxic Enforcement Act of 1986, commonly referred to as Proposition 65, to
address their concern that "hazardous chemicals pose a serious potential threat to their health and
well-being, [and] that state government agencies have failed to provide them with adequate
protection…" Proposition 65 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, currently includes approximately 800 chemicals. The Office of Environmental Health
Hazard Assessment (OEHHA) administers the Proposition 65 program, including evaluating all
currently available scientific information on substances considered for placement on the
Proposition 65 list.
Under Proposition 65, businesses in California are required to provide a "clear and reasonable"
warning before knowingly and intentionally exposing anyone to a Proposition 65-listed
chemical. Warnings can be made in many ways, including by labeling a consumer product,
posting signs, distributing notices, or publishing notices in a newspaper. Once a chemical is
listed, businesses have 12 months to comply with warning requirements.
Proposition 65 also prohibits companies that do business within California from knowingly
discharging listed chemicals into sources of drinking water. Once a chemical is listed,
businesses have 20 months to comply with the discharge prohibition.
Businesses with less than 10 employees and government agencies are exempt from Proposition
65’s warning requirements and prohibition 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.
In 2013, through the enactment of AB 227 (Gatto), the Legislature amended the clear and
reasonable warning requirement of Proposition 65 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. For these exposures, statute provides for a specified course of remediation,
which includes enabling the alleged violator to correct the alleged violation within 14 days and
pay a civil penalty of $500 in order to avoid a lawsuit.
This bill proposes to extend the course of remediation delineated for the four specified exposures
in AB 277 for all business of 10- 25 employees who have violated the clear and reasonable
warning requirement of Proposition 65.
How does Proposition 65 work to protect the public? According to the Office of the Attorney
General (AG), the provisions of Proposition 65 have been successful at protecting consumers
from toxic chemicals. The AG asserts that Proposition 65 has motivated businesses to eliminate
or reduce toxic chemicals in numerous consumer products. Products that have been reformulated
as a result of notices of violation or litigation include ceramic tableware, artificial turf, household
faucets, children’s jewelry, potato chips, candy, and vitamin supplements. Proposition 65 has
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also resulted in significant reductions in toxic air pollution – both outdoor (diesel school bus and
grocery truck emissions) and indoor (salon worker exposures to formaldehyde, toxic solvents in
nail products, and formaldehyde gas release from the building materials in portable classrooms).
Proposition 65 has induced "quiet compliance" without the need for litigation, in which
manufacturers voluntarily take steps to comply by providing their suppliers with specifications
so that the ingredients in their products avoid or significantly limit exposure to listed chemicals.
The law has also educated the general public about exposures to specific toxic chemicals,
creating both demand and market reward for less-toxic products. Finally, Proposition 65
litigation has identified specific chemical exposure concerns and led to regulatory reforms to
benefit public health at the state and national level.
Proposed regulatory action on the Proposition 65 warning requirement: After holding public
workshops on safe-harbor warning regulations in 2013 and 2014, on January 12, 2015 OEHHA
released a formal regulatory proposal to reform certain regulations related to Proposition 65.
The proposed warning regulations include a provision allowing product retailers, under specified
circumstances, to correct alleged violations of the warning requirements of Proposition 65 within
two business days after they have actual knowledge of the exposures. The provision applies to
all product retailers subject to the law, regardless of the number of employees. OEHHA held a
public hearing on the proposal on March 25, 2014. If the regulation is eventually adopted, it
would replace the existing related warning regulation.
Additionally, OEHHA concurrently proposed a regulation describing a new website it is
developing that will provide more detailed information to the public on warnings they see on
products and in locations in California; a proposed Labor Code mechanism regulation; potential
revisions to the regulation on exposures to naturally occurring chemicals; and, other changes.
OEHHA has held public hearings and/or workshops and held public comment periods for all of
these proposed changes.
Are the provisions of this bill constitutional? In order to protect the initiative authority of the
electorate, the California Constitution prohibits the Legislature from amending any statute that
was passed by ballot initiative, except by the specific conditions included in the initiative.
Proposition 65 specifically prohibits the Legislature from making any amendments, except upon
at least two-thirds vote and only if such amendments “further its purposes.” The California
Legislative Counsel Bureau (Legislative Counsel) noted that, "The California Supreme Court has
held that Proposition 65 is to be construed broadly to protect the public (People ex rel. Lungren
v. Superior Court (1996) 14 Cal. 4th 294, 306-307, 314)… A court may determine that these
proposed changes on the enforcement provisions of the act, if enacted, do not further the
purposes of the initiative, notwithstanding the legislative findings in proposed Section 2 of the
measure (see Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1249-1265)."
Arguments in support: A coalition of supporters argues that, "Unfortunately, because
Proposition 65 incentivizes individual pursuits by entitling private enforcers to 25 percent of the
penalty collected for successful enforcement in addition to legal fees, a limited number of
plaintiffs have engaged in shakedown lawsuits against small businesses over a lack of a sign.
These lawsuits can easily cost several thousand dollars to litigate, causing many small businesses
to settle out of court regardless of whether they were required by law to provide a warning…
"In 2013, recognizing the impact of these lawsuits on businesses, the Legislature passed AB 227
(Gatto), which provides businesses with fewer than 25 employees a 14-day window to cure a
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signage violation relating only to specific situations... AB 1252, however, would have broader
application than AB 227 in that it would allow businesses with fewer than 25 employees to cure
any type of signage violation…
"With so many chemicals on the list, including every day products, it’s easy to understand why
business owners sometimes fail to realize a warning sign is required. In fact, according to the
Office of Environmental Health Hazard Assessment, “determining anticipated levels of exposure
to listed chemicals can be very complex.” Further, many business owners determine that signage
is not warranted given the exposure levels of a particular chemical at their business
establishment, but attorneys will still make an allegation in a demand letter in order to pressure
them into handing over a small settlement or risk ruinous litigation. AB 1252 will help eliminate
the inappropriate use of litigation against these small businesses who can least afford these driveby lawsuits, while ensuring that the public does receive Proposition 65 warnings when
appropriate."
Arguments in opposition: The Center for Environmental Health argues that, "The purpose of
Proposition 65 is to prevent exposures by workers and the public to toxic chemicals, not to mitigate
the harm once it is done. AB 1252 would do just the opposite by allowing companies with 10 - 25
employees to avoid serious consequences if, within 14 days, they have 'corrected the violation' that
has already allowed people to be exposed to chemicals that cause cancer and/or reproductive harm,
agreed to pay a fine of $55, and submitted a written notice with proof of compliance to the person
who served the notice of violation. Not only does this bill undermine the fundamental purpose of
Proposition 65, but it also puts those working for small businesses at particular risk of exposure to
toxic materials and the associated health problems…
"By allowing businesses with fewer than 25 employees to avoid any significant consequences for
violating Prop 65, AB 1252 would eliminate incentives for businesses to comply with the statute…
Just as the threat of speeding tickets is critical to making our highways safer, the threat of Prop 65
enforcement is critical to ensuring that companies comply with the law and keep our children and
families safer…
"AB 2361 would allow any company with fewer than 25 employees to avoid serious consequences if,
within 14 days, it has 'corrected the violation.' Given the many scenarios that may require a Prop 65
warning, this provision is so vague as to be meaningless. What does it mean for a retailer to correct a
violation of Prop 65 when it has already sold a product to a consumer? How does a business that
exposes people to a Prop 65 chemical on its premises correct that violation? More importantly, who
decides whether a violation has been “corrected”? Rather than protecting companies with 10-25
employees from litigation, AB 1252 invites endless litigation on these questions."
Recent related legislation:
1) AB 543 (Quirk). Provides, under Proposition 65, 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 exists an exposure assessment that
meets three specified requirements. This bill is scheduled to be heard by the Assembly
Environmental Safety and Toxic Materials Committee on April 28, 2015.
2) AB 2361 (Jones, 2014). Would have prohibited any person from bringing an enforcement
action against a company that employs 25 people or less for failure to provide a warning for
an exposure to a chemical known to the state to cause cancer or reproductive toxicity, in
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violation of Proposition 65, unless certain conditions are met. This bill was held by the
Assembly Environmental Safety and Toxic Materials Committee.
3) AB 2738 (Committee on Environmental Safety and Toxic Materials), Chapter 828, Statutes
of 2014. Included technical clean-up of the Proposition 65 provisions in AB 227 (Gatto,
2013).
4) 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.
5) AB 1026 (Quirk, 2013). Would have changed the process for identifying carcinogens and
reproductive toxicants under Proposition 65 to require the listing of chemicals only if there is
"sufficient evidence" that the suspect material is known to cause cancer or reproductive
toxicity. This bill was held by the Assembly Environmental Safety and Toxic Materials
Committee.
Double referral: This bill has been double referred to the Assembly Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
American Coatings Association
Association of California Egg Farmers
Automotive Specialty Products Association
Biocom
Boma California
California Association of Realtors
California Building Industry Association
California Business Properties Association
California Chamber of Commerce
California Farm Bureau Federation
California Grain & Feed Association
California League of Food Producers
California Manufacturers & Technology Association
California Metals Coalition
California Paint Council
California Seed Association
California State Association of Florists
Civil Justice Association of California
Consumer Specialty Products Association
Industrial Environmental Association
International Council of Shopping Centers
International Fragrance Association, North America
National Aerosol Association
National Association of Independent and Office Properties
National Federation of Independent Business
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West Coast Lumber & Building Material Association
Opposition
As You Sow
Breast Cancer Action
Breast Cancer Fund
California Healthy Nail Salon Collaborative
California Labor Federation
California Teamsters Public Affairs Council
Californians for a Healthy & Green Economy (CHANGE)
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
Pesticide Action Network North America
Physicians for Social Responsibility, Los Angeles
Physicians for Social Responsibility, San Francisco Bay Area Chapter
Worksafe
Analysis Prepared by: Shannon McKinney / E.S. & T.M. / (916) 319-3965