California governor proposes Prop 65 reforms

California governor proposes Prop 65 reforms

Significant focus on "unscrupulous lawyers" and "nuisance lawsuits."

California Gov. Edmund G. Brown Jr. proposed reforms "to strengthen and restore the intent of Proposition 65."

In making this announcement, the governor stated, "Proposition 65 is a good law that's helped many people, but it's being abused by unscrupulous lawyers." The governor also identified the law as intended to "protect Californians from harmful chemicals."

The announcement stated the California Environmental Protection Agency (CalEPA) would work with the state's legislature, as well as stakeholders, to discuss needed reforms.

Specific ideas for reform were identified as:

  • Cap or limit attorney's fees in Proposition 65 cases
  • Require stronger demonstration by plaintiffs that they have information to support claims before litigation begins
  • Require greater disclosure of plaintiff's information
  • Set limits on the amount of money in an enforcement case that can go into settlement funds in lieu of penalties
  • Provide the state with the ability to adjust the level at which Proposition 65 warnings are needed for chemicals that cause reproductive harm
  • Require more useful information to the public on what they are being exposed to and how they can protect themselves

The American Herbal Products Association (AHPA) has maintained close attention to Proposition 65 for the last several years, providing ongoing guidance and analysis for its members.

"A quick review of the areas identified by Gov. Brown for possible reform suggests that some of them could be helpful to companies that need to deal with this law," said Trent Norris of Arnold & Porter LLP and counsel to AHPA on Proposition 65. "Certainly, companies want greater disclosure by private plaintiffs, and limits on fees would be welcome, as would a science-based re-evaluation of how acceptable levels are set. But the devil is in the details, and we will need to actively participate in the promised discussions."

AHPA President Michael McGuffin has been involved in numerous Proposition 65 activities, including an appointment to a Food Warning Working Group convened by CalEPA's Office of Environmental Health Hazard Assessment from 2008 to 2010.

"More than 10 percent of all Proposition 65 notices filed in the past five years have targeted dietary supplement companies," said McGuffin. "AHPA will continue to invest significant resources to seek to reform this law and appreciates that Gov. Brown has now agreed to have his administration take the lead on this matter."

McGuffin and Norris wrote Background on California Proposition 65: Issues Related to Heavy Metals and Herbal Products that provides invaluable information on the regulatory and liability implications of Proposition 65 on heavy metals that may be present in herbal products sold in the state of California. The document is free to AHPA members; nonmember pricing is $250.

For more information on the impact of California Proposition 65 on marketers of dietary supplements, the AHPA educational symposium, "Living with Proposition 65: Preventative Measures & Defending Against a 60-Day Notice," is available at the AHPA online bookstore on the association's website.


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