AB 227, aimed at amending California's Proposition 65, continues through the legislative process, though with major amendments

AB 227, aimed at amending California's Proposition 65, continues through the legislative process, though with major amendments

A prior post noted the very substantial problems with AB 227. If it was meant to be a universal cure, it was woefully inadequate.

However, it now appears that its scope has been limited substantially, which makes it somewhat more reasonable as a solution to the tactics used by some plaintiffs to "shakedown" small business owners.

At the initial hearing on the bill before the Assembly Environmental Safety and Toxic Materials Committee on April 16, 2013, the bill was opposed by various plaintiff groups. Assemblyman Gatto noted that his intent was to prevent certain "shakedown" practices and that he would amend accordingly. With that understanding, the bill passed out of Committee.

The next hearing was in the Assembly Judiciary Committee. Apparently Gatto and the opponents struck a deal because there was no opposition that appeared at the hearing. The changes have now become manifest:

The bill only applies to

  • An exposure to alcoholic beverages or to a listed chemical resulting from the preparation of a food or beverage for immediate consumption at the alleged violator's premises;
  • An exposure to environmental tobacco smoke by persons entering a premises where smoking is permitted at any location on the premises; or
  • An exposure to a listed chemical found in engine exhaust if the exposure occurs in a facility primarily intended for parking noncommercial vehicles.

In order for the target of the Prop. 65 notice to be able to render the issue moot, it must:

  • Cure the alleged violation within 14 days after service of the notice.
  • Agree to pay a civil penalty of $500 (adjusted annually for inflation) with 75% of that amount going to state's Prop. 65 enforcement fund and 25% to the person sending the notice.
  • Send the person who sent the notice a statement signed under penalty of perjury fully describing the actions it took to correct the alleged violation and sending a copy of any warning notice posted as part of that correction.

AB 227 also contains the following new provisions:

  • Any 60-day notice alleging any of the three types of above exposures must include a description of the option to cure the violation set forth in the bill. The bill provides that OEHHA, as the Prop. 65 implementing agency, may adopt language stating what should be included in the notice.
  • In the event of a dispute over whether a Prop. 65 enforcement action is barred by this cure provision, the notice target shall bear the burden of proving its application. If the trial court determines the notice target has prevailed, then the target can ask the judge to determine that there was no credible basis on which the notice sender could have assumed a liability. In that case the judge can find that the suit was "frivolous" and assess penalties allowed under the Code of Civil Procedure.
  • The cure provision does not apply to an action brought by the attorney general, a district attorney, or a civil attorney given Prop. 65 enforcement authority.

The history of the legislation, it changes in wording, and the votes as it moves through the legislative process can be found at: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB227&search_keywords=