New Legislative Efforts to Reform Prop. 65 – A Potentially Big Change for Small Businesses


In what is turning into a year of unprecedented talk of reform to the almost 30-year-old Proposition 65, Assemblyman Brian Jones (R-Santee) has introduced AB2361.  The bill would permit a company that receives a Proposition 65 60-day notice to “cure” the claim by paying a $500 fine – as long as the company has 25 or fewer employees.  This effort builds upon a law passed last fall revising Proposition 65 that also created a “cure” and fine option for a limited number of companies in four specific types of violations – exposure to alcoholic beverages, food cooked on the violator’s premises that creates a chemical caused from the cooking process, tobacco smoke and engine exhaust.  Companies can now cure one of these four violations if they act within 14 days to remedy it (basically by placing Proposition 65 warnings at the facility) and pay the fine.  Assemblyman Jones’ proposed revisions would be much broader – not limiting the “cure” option to the specific instances of last year’s change.  It, too, provides for a 14-day window to pay the $500 and cure the violation (which, given the short time frame most likely means placing warnings). The only limit would be whether a company has more than 25 employees.

Both the Jones proposal and the revision to the law that (narrowly) passed last year share the same reasoning – trying to limit the opportunistic “bounty hunter” nature of the law that often sees small business owners, unfamiliar with the confusing law, be pressured into settlements for “violations” that seem far removed from actually protecting the public.   Because Proposition 65 was passed by initiative,  however, any bill to revise it requires two-thirds of each house of the state legislature and then the governor’s signature to become law.

Interestingly, the agency that oversees Proposition 65’s regulations (OHHEA) is proposing a “cure” option for businesses with 25 employees or less, but its proposal is much more tame and applies only to retail sellers who commit minor violations such as failing to post warning signs.  (See article above this one.)   It is too soon to tell whether AB2361 will go far.  Assemblyman Jones is a Republican in a very Democratic state legislature with a Democratic governor.  However, in the midst of Gov. Jerry Brown and OHHEA discussing and proposing significant changes to the law’s regulations, and with the modest revision to the law that passed last year, Jones’ bill just might fact find a more receptive audience.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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