Proposed Prop 65 changes ‘could be helpful’, says AHPA legal counsel
Gov. Brown is proposing reforms "to strengthen and restore the intent of Proposition 65”, which he described as a “good law that's helped many people, but it's being abused by unscrupulous lawyers".
Prop 65 requires manufacturers selling products in California to give warnings if their products expose consumers to any detectable amount of hundreds of chemicals believed to cause cancer or reproductive toxicity.
While the legislation is not new, firms in the food and dietary supplements sector have recently found themselves at the receiving end of a tidal wave of prop 65 notices filed by a handful of plaintiffs, including the Environmental Research Center (ERC), the Center for Environmental Health/Lexington Law Group, and clients of a small coterie of law firms.
"More than 10% of all Proposition 65 notices filed in the past five years have targeted dietary supplement companies," said AHPA President Michael McGuffin. "AHPA will continue to invest significant resources to seek to reform this law and appreciates that Gov. Brown has now agreed to have his administration take the lead on this matter."
The governor’s proposals for reform include capping attorney's fees in Prop 65 cases, requiring stronger demonstration by plaintiffs that they have information to support claims before litigation begins, requiring greater disclosure of plaintiff's information, setting limits on the amount of money in an enforcement case that can go into settlement funds in lieu of penalties, providing the state with the ability to adjust the level at which Proposition 65 warnings are needed for chemicals that cause reproductive harm, and requiring more useful information to the public on what they are being exposed to and how they can protect themselves.
The announcement stated the California Environmental Protection Agency (CalEPA) would work with the state's legislature, as well as stakeholders, to discuss needed reforms.
AHPA President Michael McGuffin has been involved in numerous Proposition 65 activities, including an appointment to a Food Warning Working Group convened by CalEPA's Office of Environmental Health Hazard Assessment from 2008 to 2010.
Despite welcoming the proposals, a note of caution was added by Trent Norris of Arnold & Porter LLP and counsel to AHPA on Proposition 65. “A quick review of the areas identified by Gov. Brown for possible reform suggests that some of them could be helpful to companies that need to deal with this law.
“Certainly, companies want greater disclosure by private plaintiffs, and limits on fees would be welcome, as would a science-based re-evaluation of how acceptable levels are set. But the devil is in the details, and we will need to actively participate in the promised discussions.”
AHPA offers an educational symposium, "Living with Proposition 65: Preventative Measures & Defending Against a 60-Day Notice," in its online bookstore on the AHPA website.