California Assemblyman Mike Gatto, D-Los Angeles, on Feb. 4 introduced legislation that would allow business owners in California who receive notice of a Proposition 65 violation a chance to remedy the violation and achieve compliance without facing fines.
The American Herbal Products Association (AHPA) noted that this action was "a step in the right direction that would better encourage compliance."
Consumer goods sold in the state of California are, with certain exceptions, subject to that state's Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986. The law places specific labeling requirements on products sold in California if the product contains chemicals listed by the state as carcinogens or reproductive toxicants. Failure to provide such warnings can result in action by the California Attorney General or by "any person in the public interest."
"The voters passed Prop. 65 to be protected from chemicals that would hurt them," Gatto said in a statement. "They did not intend to create a situation where shakedowns of California's small-business owners would cause them to want to close their doors."
By allowing a business time to correct the violation within 14 days without being subject to the retroactive $2,500 per day fine, the bill, AB 227, which is supported by the Small Business Advisory Commission formed by Gatto this year, would further the original intent of Prop. 65--to obtain compliance with warnings for chemicals present in a product or at a retail site, according to Gatto.
"Passage of this legislation would shift Proposition 65 from a law that punishes small businesses, usually for inadvertent oversights, to one that would actually provide an immediate motivation for companies to comply," said AHPA President Michael McGuffin, a recognized expert on Proposition 65 who served on a workgroup, California's Office of Environmental Health Hazard Assessment, from 2008 to 2010.
Although generally supportive of the bill, McGuffin also identified concerns with the legislation as introduced.
"While corrections of violations within 14 days may work at a coffee shop, where all of the goods are on the premises, it may be difficult to achieve for products that are at various stages of distribution throughout the state. Also, I have some concern that the attorney general and city or district attorneys may not readily 'concur' that a violation has been corrected," said McGuffin.
"But these issues can be worked out through the legislative process. All in all, this is a step in the right direction and would transform enforcement of Proposition 65 into a process that would better encourage compliance," he added.
As a service to its members, AHPA created Background on California Proposition 65: Issues related to heavy metals and herbal products in 2008, which is available for free download.