An Update on Reforming California’s Flawed Prop 65 Consumer Law

There’s been some progress—but it doesn’t go nearly far enough. And a new proposal could actually make things worse. State-based Action Alert!

ANH-USA recently released a white paper detailing how Prop 65 has been implemented in a way that lines the coffers of trial attorneys and does very little actually to protect consumers. We asked residents of California to write to their legislators, and we also shared the white paper far and wide in California—including the California attorney general’s office. (For more background on this issue, see our earlier coverage here.)

The good news is that these criticisms seem to have been heard by the attorney general (AG). The bad news is that the AG’s response doesn’t go far enough to get Prop 65 back on track.

California AG Kamala Harris has introduced a proposal to curb the frivolous lawsuits brought as a result of Prop 65 violations. The AG’s plan:

• Cap “payments in lieu of penalties.” Currently plaintiffs can choose a private organization to receive money resulting from a lawsuit. In our white paper, we called for the elimination of these payments.
• Require attorneys and plaintiffs to better define and report how they spend certain kinds of settlement payments. In our white paper we called for judicial scrutiny of all
• Raise the bar for determining when a settlement confers the “significant” public benefit that is a prerequisite for obtaining attorney fees. In our white paper, we called for a more drastic decrease in money going to lawyers to eliminate incentives to file frivolous lawsuits.

These are important initial steps toward fixing Prop 65’s backward regulations, but they do not go far enough to reduce the financial incentives for predatory trial lawyers and “bounty hunters.”

Meanwhile, California’s Office of Environmental Health Hazard Assessment (OEHHA) has proposed several reforms to Prop 65 which may actually increase the number of frivolous lawsuits, making it even harder to do business in California and further impeding the law’s ability to protect consumers.

OEHHA’s proposals are supposed to make labels “clear and reasonable” but actually do just the reverse. Updates to the calculations that determine which chemical exposures will require a label are no better. Even the lead exposure calculation does not fix the problem of lead, which occurs naturally in many foods and food-based supplements (such as spinach) yet lower exposures do not pose a risk to most of our bodies—they are designed to use what we need and remove what is harmful.

OEHHA, the AG, and California’s legislators must do better than this if they want to fix the current system and achieve the law’s initial intent.

State-based Action Alert! California residents, send a message to your state AG urging her to go further in her proposed reforms and really fix the broken Prop 65 system. Please send your comments immediately.

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