Gov. Brown Seeking Broad Consensus in Prop 65 Reform

SACRAMENTOCalifornia Gov. Edmund G. Brown Jr. is pursuing an ambitious strategy: radically reform a 27-year-old law that is rife with conflict: the Safe Drinking Water and Toxic Enforcement Act of 1986, more commonly known as Proposition 65.

Passed in 1986 by California voters, Prop 65 requires businesses to "provide a 'clear and reasonable' warning before knowingly and intentionally exposing" individuals to a list of chemicals that are known to cause cancer, birth defects and other reproductive harm, according to the Office of Environmental Health Hazard Assessment (OEHHA) within the California Environmental Protection Agency (Cal/EPA).

Announced in May, Brown's reforms include three main changes: reduce the potential for unsubstantiated litigation, furnish the public with more detailed warnings, and modify certain safe harbor levels at which warnings are not required.

Brown's administration initially held a series of calls and personal meetings with a group of roughly 200 individuals to discuss the governor's proposals. A smaller working group has subsequently formed to continue those discussions, Randy Pollack, a dietary supplement lawyer who is part of the working group, said.

The proposals are likely to collapse unless Brown's administration can achieve broad consent among such divergent stakeholders as environmental groups, California businesses and plaintiff's attorneys who have the right to enforce the law.

"There is going to have to be some sort of consensus among all the folks to be successful," Pollack said.

The working group had been scheduled to hold its first meeting with California government officialsincluding representatives of Brown's office and Cal/EPAto discuss reforms aimed to crack down on frivolous lawsuits, Pollack said.

Pollack could not be reached immediately Monday to comment on whether the meeting was held and what the feedback entailed. Evan Westrup, a spokesman for Brown, declined to comment.

Prop 65, which provides for civil penalties of up to $2,500 per day, has been abused by plaintiff's lawyers who force companies large and small into settlements that yield little public benefits, some critics maintain. 

According to the law firm Alston & Bird, Prop 65 has led to 16,000 lawsuits and nearly $500 million in settlements. Michael McGuffin, president of the American Herbal Products Association (AHPA), said companies selling dietary supplements and health foods have spent roughly $10 million alone on Prop 65 settlements, with the average settlement ranging between $65,000 and $80,000.

Under Brown's reforms, which INSIDER TV also reported on, plaintiff's attorneys would have to provide certain evidence that their fees are reasonable. They also would be required to provide stronger information about their case in the so-called certificate of merit, which is provided to the California Attorney General, and share the information with the alleged violator under certain circumstances.

A more modest reform was unanimously passed in May through the California Assembly. The bill would grant small businesses 14 days to comply with notice of a violation. To avoid litigation, businesses would have to correct the violation within two weeks and pay a fine of $500. AB 227 would apply to certain alcoholic beverages, food and beverages, tobacco smoke and engine exhaust.

Peg Carew Toledo, an appellate specialist and Prop 65 defense attorney in Roseville, CA, characterizes the bill as a "very modest reform to Prop 65."

Brown's proposal requiring more specific warnings could have a bigger impact on food and beverage companies. Under draft language being circulated to stakeholders, the warnings would need to disclose certain information including "the identification of the health effect(s) for which the chemical(s) is listed, such as cancer, male reproductive toxicity, female reproductive toxicity, or developmental toxicity; information on how a person is being exposed and, where possible how to avoid or reduce the exposure."

McGuffin of AHPA isn't crazy about these proposals. "That sure sounds to me like it's a penalty," he said. "The consumer looks at that [specific warning] and says, 'no thanks.' They buy the one next to it" that has the listed chemical, but omits the required warning. 

He recommended some alternative language. For instance, "what if it said 'not for use by women who are pregnant or are nursing?'" McGuffin suggested.

Colleen Flannery, a spokesperson for Cal/EPA, said consumers often call the agency and don't know based on businesses' generic warnings what chemical is contained in a product.

"They complain they receive just sort of a blanket warning," she said. "Consumers are frustrated because they are not getting the exact kind of information they would like."

Flannery was among several sources who said the governor's reforms need broad consensus if they are going to have a chance for passage in the state legislature.

"Everybody has to walk together on this hand in hand, and if anybody drops their hand, they wouldn't go forward with any of the reform proposals," she said. "The administration is trying to get broad stakeholder buy-in before going forward."

If Brown can manage to obtain broad support for his proposals, they are expected be introduced in the state legislature by Sen. Ted Lieu, a Democrat from Torrance. Under the language of Prop 65, a ballot initiative, the reforms would need to "further the intent" of the law and pass the legislature by at least a two-thirds majority.