California Gov. Jerry Brown aims to reform Proposition 65 to reduce frivolous lawsuits filed under the state law against manufacturers or retailers selling consumer products with potentially toxic ingredients.

On May 7, Brown announced plans to tweak the law by requiring expanded plaintiff disclosures and demonstrations of supporting evidence before allowing litigation to proceed.

The Democrat, who was the state’s attorney general prior to returning to the governor’s post in 2011 after serving two terms from 1975 to 1983, also wants to cap attorney fees and settlement funds in Prop 65 cases, allow adjustments to chemical levels triggering warnings regarding reproductive harm, and require dissemination of more useful information to the public about exposure to carcinogenic substances.

California Gov. Jerry Brown

“Proposition 65 is a good law that’s helped many people, but it’s being abused by unscrupulous lawyers,” Brown said in a release. “This is an effort to improve the law so it can do what it was intended to do – protect Californians from harmful chemicals.”

The Personal Care Products Council lobbied for exemptions for cosmetic products when California’s Proposition 65, the Safe Drinking Water and Toxic Enforcement Act, passed by voter ballot in 1986. The legislation requires manufacturers to include warning labels on products containing ingredients “known to the state” to cause cancer or reproductive toxicity, as determined by the California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment.

As of April 19, 2013, CEPA has tallied about 900 such substances.

PCPC’s position has been that cosmetics in compliance with federal standards should not be held to Prop 65 mandates – and early on, the group managed to secure an exemption from the state’s cancer-warning requirements that lasted until December 1993, PCPC notes on its website.

Other consumer-goods stakeholders have looked for intervention from FDA, arguing that Prop 65 leads to consumer confusion and misbrands products deemed safe under federal food and drug law Also see "Waiting For FDA Intervention On Prop 65? Don’t Hold Your Breath" - HBW Insight, 2 March, 2009..

In recent years, the personal-care industry has worked to oppose the listing of cosmetic ingredients as known carcinogens based on questionable or insufficient science, including benzophenone, coconut oil diethanolamine condensate (cocamide diethanolamine) and diethanolamine, added to the state’s blacklist in 2012 ([A#02120130007]).

Some large firms, including Procter & Gamble Co., have accepted that it’s often more economical to settle Prop 65 suits than to contest them, even when they are not in violation Also see "Settling Prop 65 Suits Is Easier, Cheaper Than Fighting, Firms Say" - HBW Insight, 15 September, 2008..

PCPC could not be reached for comment on Gov. Brown’s proposed reforms to the system.

AHPA Holding Out For Details

The American Herbal Products Association says while the proposals have promise, the supplement industry should work to ensure effective changes are made. Since 2008, supplement companies have been the target of more than 10% of all Prop 65 notices, according to the association.

Trent Norris, an attorney with Arnold & Porter LLP and counsel to AHPA on Prop 65, said Brown’s proposals ultimately could help firms comply with the law.

“Certainly, companies want greater disclosure by private plaintiffs, and limits on fees would be welcome, as would a science-based reevaluation of how acceptable levels are set. But the devil is in the details, and we will need to actively participate in the promised discussions," Norris added.

The Natural Products Association similarly “will have to see the specifics of the proposed changes before we can have a firm position,” but the trade group is “happy to see that this issue has become a topic of interest in the state,” said Elizabeth Hurst, NPA’s director of government relations, in an email.

A Boon To The Business Community

Brown is positioning the Prop 65 reforms as part of his efforts to ease regulatory burdens on California businesses, including through the recently established Governor’s Office of Business and Economic Development.

The governor plans to work with state lawmakers and build on legislative reforms to Prop 65 already under consideration. Because the law was enacted by popular referendum, amending it requires a two-thirds majority of the legislature.

Among existing bills that Brown is likely to champion is Assembly Bill 227, which proposes to allow firms 14 days to correct Prop 65 signage violations once discovered, allowing them to avoid retrospective fines of $2,500 per day ([A#05130408008]).

The legislation, introduced by Assemblyman Mike Gatto, a Los Angeles Democrat, passed unanimously out of the Assembly Judiciary Committee April 30 and moved to the Appropriations Committee.

“It’s not every day a piece of your legislation sparks a statewide reform effort,” Gatto said in an email. “I’m thrilled that the governor is engaging on this issue and would be honored to work with him.”

Gatto added that his intention is to “deal with some of the frivolous lawsuits that have plagued small businesses around California” by collaborating with stakeholders from the business, environmental justice, legal and labor communities.

“Devil Is In The Details” On Prop 65 Reform Benefits – AHPA

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