July 3, 2013
The American Herbal Products Association (AHPA) submitted comments on draft proposals to reform California Proposition 65 that are part of an initiative by California Governor Edmund G. Brown Jr. to improve the law.
AHPA President Michael McGuffin highlights several issues with the draft proposed reforms and the current law in comments submitted to the California Environmental Protection Agency (Cal/EPA). McGuffin expresses concern that the reform is being rushed without sufficient time for a meaningful review and input by all stakeholders.
"The best ideas for potential reforms to this law will almost certainly be identified by taking more time to gather and evaluate ideas from all interested parties in a more deliberative process," McGuffin writes.
Clear and reasonable warnings
AHPA also expresses concern that the proposed reforms to the clear and reasonable warnings section of the law provides an unnecessarily prescriptive and narrow requirement for the term "clear and reasonable," when it applies to consumer products. AHPA acknowledges that the draft reform to the warning language is an improvement, but maintains that current and draft reform language goes beyond the provision of a clear and reasonable warning, and extends to create unwarranted alarm. This has the unintended consequence of penalizing those who comply with the law.
AHPA expresses appreciation that the proposed reforms would establish new obligations for private plaintiffs to address Governor Brown's description of the law as being "abused by some unscrupulous lawyers driven by profit rather than public health." However, AHPA is concerned that plaintiffs will pass on any new costs they bear to comply with new obligations to defendants by seeking more costly settlements. There is also nothing in the proposed reforms to that is likely to reduce the number of Proposition 65 enforcement actions. Therefore, it is likely that the reforms would increase additional costs for the industry. AHPA advocates for additional reforms to reduce the number of settlements.
AHPA asks for the proposed reforms to be expanded to provide a grace period for compliance that includes consumer goods. AHPA's experience is that marketers of consumer goods that violate Proposition 65 often inadvertently fail to provide required warnings. These companies are often unaware of the presence of listed chemicals, including environmental contaminants such as heavy metals. They could be motivated to provide required warnings more promptly after identifying an exposure if a grace period were established. This recommendation is similar to legislation introduced by California Assemblyman Mike Gatto, D-Los Angeles that would provide a 14-day grace period to correct alleged violations for those who receive a 60-day notice of violation. AHPA supports the general intent of this legislation.
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