California Enacts Legislation in an Attempt to Level the Playing Field in Proposition 65 Enforcement Actions

Environmental Law  

October 12, 2017

On October, 5, 2017, Governor Brown announced that he signed AB 1583 into law. AB 1583, authored by Assemblymember Ed Chau, a democrat from Monterey Park, is intended to promote transparency in Proposition 65 private enforcement actions. AB 1583 received unanimous support in both houses because it is believed that it will help level the playing field for defendants in Proposition 65 enforcement actions. However, whether AB 1583 will achieve that goal is not yet clear.

Proposition 65, or the Safe Drinking Water and Toxic Enforcement Act of 1986, prohibits businesses from releasing chemicals “known to the state to cause cancer or reproductive toxicity,” and from exposing people to chemicals on the Proposition 65 List without providing “clear and reasonable” warnings. Proposition 65 permits private attorneys to bring actions to enforce its requirements. Before initiating a Proposition 65 lawsuit, a private plaintiff is required to provide the alleged violator with a 60-day notice of violation (NOV). The NOV must include a certificate of merit that provides that the plaintiff has “consulted with one or more persons with relevant and appropriate experience or expertise who has reviewed facts, studies, or other data regarding the exposure to the listed chemical that is the subject of the action, and that, based on that information, the person believes there is a reasonable and meritorious case for the private action.” Cal. Health & Safety Code § 25249.7(d)(1). The plaintiff is required to serve the NOV, along with factual information sufficient to establish the basis for the certificate of merit on the California Attorney General. Id. Despite the fact that the factual information supporting the certificate of merit is key to the private enforcer’s claim, it is not discoverable by the alleged violator under current law.

AB 1583 contains two main components:

  1. It makes the basis for the certificate of merit discoverable to the public, subject to legal privileges, including the attorney-client privilege, the attorney work product privilege, or any other legal privilege;
  2. It requires the Attorney General, after conferring with the noticing party, to serve a letter on the noticing party and the alleged violator if the Attorney General believes there is no merit for the action. The bill requires these communications to be publicly available.

AB 1583 arguably places a higher burden on plaintiffs to establish merit for alleged violations because the Attorney General now has a greater role in reviewing the basis for private enforcement actions. But, a letter from the Attorney General regarding a claim’s lack of merit will not necessarily deter those private plaintiffs from pursuing their claims in a Proposition 65 lawsuit.  And, it is likely that when faced with a request for the factual information underlying a certification of merit, a private plaintiff will claim a privilege, making it difficult and expensive for alleged violators to litigate the issue and view that factual information. While AB 1583 is a step in the right direction towards Proposition 65 reform, it likely does not go far enough in leveling the playing field.

For assistance in complying with Proposition 65 enforcement matters, please contact us.