California Enacts Modest Reform to Proposition 65

By Karen F. Lederer and Eric L. Unis

On October 5, 2013, California Governor Jerry Brown signed into law a bill amending the state’s notorious Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Prop 65, giving some protection to a few businesses. Prop 65 has long been a scourge of those doing business in California or selling their goods to California consumers. Prop 65 requires that businesses post signs or label products to warn of possible exposures to certain chemicals found to cause cancer or reproductive toxicity, providing for stiff penalties, up to $2,500 per day, for failure to do so.

Critics of Prop 65 charge that the law has generated a high volume of frivolous litigation with only the plaintiffs’ bar benefitting. While more sweeping reforms to address concerns such as the sometimes exorbitant plaintiffs’ attorneys’ fees paid out by defendants and the low evidentiary threshold for bringing Prop 65 suits were initially proposed, the final bill was very limited. The amendments only apply to: (i) businesses who allegedly fail to warn the public of exposures relating to onsite consumption of alcoholic beverages; (ii) restaurants alleged to expose customers to chemicals formed in food or beverages when they are being cooked or prepared; (iii) businesses allegedly causing exposure to tobacco smoke on their premises; and (iv) parking garages.

Before any Prop 65 case can be filed, the prospective plaintiff must serve a notice of violation on the alleged violator. Businesses covered by the amendment who receive a notice of violation will have 14 days to correct the violation and pay a $500 civil penalty per location to avoid litigation. The amendments address concerns that were raised in particularly controversial Prop 65 cases filed in recent years, such as the case filed against Starbucks and dozens of other coffee shops for failing to warn consumers about the presence of acrylamide, a chemical formed during coffee brewing. Again, the new amendments are very limited in scope and most businesses must therefore remain mindful of the possibility of Prop 65 suits.

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