California Assembly Bill Would Provide Prop. 65 Safe Harbor
The California Assembly’s Environmental Safety and Toxic Materials
Committee has scheduled an April 16, 2013, hearing on a bill (A.B. 227)
intended to give small business owners two weeks to correct a purported
violation of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop.
65) without incurring any liability under the law.
The measure was introduced by Assemblyman Mike Gatto (D-Silver Lake) at
the request of a coffeehouse owner who received a 60-day legal notice after
he started serving alcoholic beverages without the requisite Prop. 65 warning
to customers about chemicals, such as alcohol, known to the state to pose a
cancer or reproductive health risk. If the letter recipient demonstrates to the
satisfaction of a city attorney, local district attorney or state attorney general
that the violation has been corrected, no further enforcement action could be
taken.
As currently drafted, the bill would provide a safe harbor to any recipient of a 60-day Prop. 65 notice letter, although it was apparently intended to protect small business owners. According to a news source, this has raised concerns among consumer advocacy groups that it would apply too broadly and include product manufacturers, giving them an incentive to delay complying with the law immediately. Critics also reportedly complain that the bill would burden prosecutors who would be “inundated on all these sorts of questions” as to whether businesses or other entities have corrected the violation. Still, a number of industry trade groups support the proposal, calling it a “commonsense approach” to Prop. 65 enforcement and claiming that it would protect businesses from “shake-down lawsuits.” See Inside Cal/EPA, March 28, 2013.
