Vague 'Wood Dust' Toxin Added to California's Prop 65 Warnings List

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In December 2009, California added "wood dust" to the list of more than 900 chemicals and other substances subject to California's Safe Drinking Water and Toxic Enforcement Act," commonly called "Proposition 65." The listing was controversial because the term "wood dust" is vague, too broad and will undoubtedly lead to overenforcement, subjecting the business community to "bounty hunter" lawsuits. The warning requirement took effect on December 18, 2010.

Proposition 65 requires any person "in the course of doing business" who exposes an individual in California to a chemical "known to the state" to cause cancer or reproductive toxicity must give a "clear and reasonable" warning. Failure to give such a warning before exposure is punishable by a civil penalty of up to $2,500 per violation, per day. The act is enforced through civil lawsuits, which, under this unique law, places the burden of proof on defendants. Although primary jurisdiction is vested in the state attorney general and certain designated city and county prosecutors, anyone may sue to enforce the act, as long as the putative plaintiff first gives written notice to the alleged violator and designated public prosecutors, and the public prosecutors fail to commence a civil action within 60 days.

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