California Governor Proposes Prop. 65 Litigation Reforms

Working through California’s Environmental Protection Agency, Gov. Jerry
Brown (D) will collaborate with stakeholders and the legislature to advance
Proposition 65 (Prop. 65) reforms that would end frivolous “shake-down”
lawsuits, improve warnings about dangerous chemicals and strengthen the
science that supports warning levels. The governor will have to convince
environmental and consumer groups that the reforms are needed; any
changes will apparently require the approval of at least two-thirds of both
legislative houses, and supporters believe that the current law works well
to force businesses to cease making products with chemicals known to the
state to cause cancer or reproductive toxicity. Numerous lawsuits have been
filed against food companies under the law since it was adopted in 1986 for
various substances found in foods, including acrylamide, MEI-4 and lead.

According to a May 7, 2013, press release, the governor will seek to (i) cap or
limit attorney’s fees in Prop. 65 cases, (ii) require that plaintiffs demonstrate
support for their claims before filing lawsuits, (iii) increase plaintiffs’ disclosure
requirements, (iv) limit how much money in an enforcement action “can
go into settlement funds in lieu of penalties,” (v) allow the state to adjust
“the level at which Proposition 65 warnings are needed for chemicals that
can cause reproductive harm,” and (vi) require that warnings include useful
information about what the public is exposed to and how they can protect
themselves. See Los Angeles Times, May 8, 2013.