Consumer Protection & Privacy

Norton Rose Fulbright: California Attorney General seeks to change Proposition 65 settlement landscape

By Lauren Shoor

Continuing a flurry of activity this year to reform Proposition 65 in California, the Office of the Attorney General is proposing amendments to the Proposition 65 regulations that would affect settlement terms, penalty amounts, and attorneys’ fees in civil actions filed by private persons in the public interest. For a more detailed discussion of Proposition 65 settlements in private enforcement actions, please see our prior post on this topic.

Per the Initial Statement of Reasons, this rulemaking is intended to:

  • ensure that OEHHA gets the civil penalties specified in Proposition 65,
  • limit the ability of private plaintiffs to divert the statutory penalties to themselves or to third parties in the form of “additional settlement payments,”
  • increase transparency of settlements in private enforcement actions to ensure that “additional settlement payments” are spent on matters with a sufficient nexus to the alleged violation, and
  • reduce the financial incentives for private plaintiffs to bring and settle Proposition 65 cases that do not confer a significant public benefit.

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