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Proposition 65 Reform from Legislature Signed into Law Today by Governor

October 7, 2013
Governor Jerry Brown has signed into law AB 227, legislation that will now allow a business to correct certain alleged Proposition 65 warning violations and avoid the “bounty hunter” lawsuits that have plagued California businesses for years.
Introduced in February 2013 by Burbank Democrat Mike Gatto, AB 227 began as a bill that would have allowed businesses 2 weeks to correct any claimed warning signage violations and  allowing  no lawsuits to be filed if corrected.  After amendments, the bill was watered down to include a $500 civil penalty but certainly significantly less than the cost of a lawsuit or some of the settlements reached historically in these private-attorney general cases.  The bill carried a 2/3 vote in both houses of the legislature to pass, in itself an unusual accomplishment.
The bill is effective immediately and amends Heath & Safety Code Section 25249.7.  It prohibits the recovery of payments or reimbursements if, within 14 days after receiving notice of failure to provide clear and sufficient warnings of alleged exposures, the alleged violator (1) corrects the alleged violation, (2) pays a civil penalty in the amount of $500 per facility or premises, and (3) notifies the person bringing the action that the violation has been corrected pursuant to the specified proof of compliance form.   The bill requires the Judicial Council to adjust the amount of the civil penalty on April 1, 2019, and at each 5-year interval thereafter.
While not perfect, AB 227 is a good first step toward bringing Prop. 65 litigation under control.  The next step is for the Office of Environmental Health Hazard Assessment (OEHHA), the implementing agency, to develop a new series of Prop. 65 warnings which are intended to more adequately communicate informative and meaningful warnings for potential exposures to chemicals known by the State to cause cancer or reproductive toxicity which are regulated by Prop. 65.

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