Anna Aguillard Nov. 18, 2015, 12:51pm


SACRAMENTO – California Attorney General Kamala Harris has proposed a number of amendments to the state’s Proposition 65 regulations that will attempt to reform the way that Prop 65 claims brought by private parties are enforced in the state.

However, these proposed rule changes may not bring the substantial reform needed to fix the controversial proposition, feels Karyn Schmidt, a senior director at the American Chemistry Council.

“Whether or not this proposal is anything more than incremental, and whether it will have any sort of substantial or long-lasting effect to decrease the number and size of bounty hunter suits, is unknown,” Schmidt told Legal Newsline.

“Clearly, what is needed is substantial, fundamental change to this program, not the kind of little incremental change that the regulatory proposal is likely to deliver.”

Prop 65 regulations, approved by voters in 1986, were originally created in response to growing concerns over their exposure to toxic chemicals. Under Prop 65, the state publishes a list of potentially harmful chemicals once a year.

Business are prohibited from discharging listed chemicals into drinking water, and are required to provide a “clear and reasonable” warning before exposing anyone to significant levels of any listed chemical.

Additionally, the regulations were intended to protect citizens from harmful exposure by providing a way for private plaintiffs to file civil suits against businesses they believed posed health threats, rather than relying solely on public enforcement.

If, after a person has given a notice of alleged violation of Prop 65, no public prosecutor has begun investigation, private attorneys may prosecute.

However, according to Schmidt, allowing private plaintiffs to begin investigation has created a “big problem” – it creates financial incentives for frivolous claims, encouraging what is commonly referred to as “bounty hunter lawsuits” that harm both businesses and consumers.

“Businesses in California don’t have really any certainty with the system,” Schmidt said.

“Some businesses get sued repeatedly for different constituents and their products over time. It is really a bit of a revolving door in terms of litigation, and these costs, of course, ultimately wind up hurting consumers, hurting real people, so that’s a problem as well.”

The regulations were supposed to direct the majority – 75 percent – of civil penalties back to the state’s Office of Environmental Health and Hazard Assessment (OEHHA) to be spent on scientific support activities.

However, the attorney general’s analysis revealed that the majority of these payments are actually going back to attorneys as “payments in lieu of civil penalties."

“Certainly, bounty hunters or private attorneys have been using Prop 65 to their benefit, and fines have not been accruing to the state of California as the state expects,” Schmidt said.

According to paperwork from Harris’s office, the proposed amendments would act to ensure that OEHHA receives the civil penalty funds specified by Prop 65, limit the ability of private plaintiffs attorneys to divert awarded fees to themselves and their clients, increase the transparency of Prop 65 settlements, and reduce the financial incentives for plaintiffs attorneys to raise cases that do not benefit the public.

“Prop 65 hasn’t improved over time, the number of bounty hunters hasn’t diminished, and worst of all, the Prop 65 system really isn’t delivering better or safer consumer products for anyone. It’s delivering richer pocket books for bounty hunters,” Schmidt said.

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