California Proposition 65: A Toxic Solution for Toxic Torts

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California's Proposition 65 is a law that can almost defy explanation, because when one tells the uninitiated how it operates and who is affected, the typical response runs along the lines of "You must be mistaken, nobody would pass a law like that!"

Many have contended that the law was a mistake, but Proposition 65 is real and is not going away. Any business operating in California or selling products into California should be aware of it and take appropriate steps to comply with it.

Formally known as the Safe Drinking Water and Toxic Enforcement Act of 1986, California Health and Safety Code §§ 25249.5 et seq., Proposition 65 was passed by voters reacting to a simple campaign message promising that the act would prohibit businesses from exposing California residents to chemicals that cause cancer or reproductive harm.

In practice, the law does not ban the use of any particular chemicals, but it seeks to achieve its objectives through two distinct mandates: (1) businesses may not discharge certain chemicals into sources of drinking water, and (2) businesses must provide a "clear and reasonable warning" before exposing people to even minute quantities of specified chemicals that are potential carcinogens or reproductive toxins.

These two provisions are not the real issue. The potential abuse and expense resulting from Proposition 65 are creatures of the law's unique enforcement scheme, which empowers virtually anyone to file a Proposition 65 lawsuit against a business that fails to provide the requisite warnings, and it rewards the filer with a share of any penalties resulting from a settlement or judgment. A plaintiff may file suit even if he or she has suffered no harm and has never been to the defendant's premises or used its products. This scheme has created armies of so-called "citizen enforcers" vying for a share of statutory penalties, backed by law firms seeking an award of attorneys' fees.

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