Effort On To Limit 'Public Interest' Proposition 65 Settlement Releases In California

California's Proposition 65 (Sections 25249.5 et seq Health & Safety Code) is an unusual regulatory scheme. Lawsuits may be filed by private individuals. Plaintiffs are not required to have standing. The law only addresses a warning requirement; it does not itself prevent or constrain the presence of any listed chemical. Thus, a product can contain, as we euphemistically say, methyl ethyl death, and so long as the product has the standard warning, there is nothing in Prop. 65 that limits the presence of said chemical. For an overview of Prop. 65, see http://www.rmkb.com/index.cfm/publications/publication-details/?pkid=253.

Unfortunately, the law has been subject to abuse in the past; some corrective measures have been enacted. Despite these measures, the law is seen as a tool used by some to extract "greenmail" from businesses; other view the law as providing an "incentive" to remove harmful chemicals from products sold not only in California, but elsewhere.

One of the abuses often noted by both the California Attorney General and those subject to such lawsuits is that plaintiff lawyers are more interested in generating fees than in achieving real change in the content of consumer products. Plaintiffs have been accused of exchanging very broadly worded releases as part of settlements in exchange for "generous" attorney's fees. Such settlements also often provide minimal return to the State of California, which is theoretically entitled to 3/4 of the penalties imposed.

In terms of addressing the release issue, the California Attorney General has now made known that it views any settlement release made in the "public interest" that is broader than the product(s) and listed chemical(s) set forth in the 60-day notice to be improper. This view was announced at a conference on Prop. 65 a couple of months ago, and has now been reiterated in a letter from the California AG to the usual cast of Prop. 65 plaintiff's lawyers.

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