Audit, Compliance and Risk Blog

Hazardous Substances: New Form Offers Way Out Of Prop. 65 Prosecution

Posted by Viola Funk on Wed, Jan 22, 2014 recent change to rules around Proposition 65 lawsuits will make it easier for some businesses to avoid being prosecuted for infringement of the Safe Drinking Water and Toxic Enforcement Act. The alteration covers cases in which individuals allege inadequate warning signage regarding the release of substances known to cause cancer or birth defects or other reproductive harm. Such suits have proliferated under the legislation, embroiling business owners in costly legal battles.

In the latest installment of the evolution of the law that began in 2002, private plaintiffs are now obliged to submit a Notice of Special Compliance Procedure – Proof of Compliance Form to an alleged violator. This form, which contains the plaintiff’s summary of the allegations, must be given to the violator when the violation involves exposure to alcoholic beverages or listed chemicals in food or beverages consumed on the violator’s premises, tobacco smoke, and/or listed chemicals in engine exhaust.

The recipient of the form then has 14 days to correct the alleged violation, agree to pay a $500 civil penalty, and notify the person who provided the notice that the violation has been corrected by returning a copy of the original notice with additional information filled in.

According to coverage on the SFGate website, the tweak offers businesses a way to forestall the significant effort and expense of responding to certain Prop 65 suits:

Caroline Cox, research director with the Center for Environmental Health in Oakland, which has brought many Prop. 65 cases against companies, is happy with the final bill.

“It started out being a very open-ended bill that probably would have gotten rid of the good things Prop. 65 has accomplished,” she said. “It basically takes care of some particular situations in which small businesses were getting jerked around—I think you could call them frivolous lawsuits.”

Assemblyman Mike Gatto (D–Los Angeles), the bill’s author, was quoted as saying in a statement about the bill that “if the business owners comply, they [will] be safe from legal action—including Prop. 65’s crushing $2,500 per-day retroactive fine, plus legal fees, and the stress of battling unfair litigation.”

Prior to the adoption of Gatto’s bill, businesses had 14 days in which to correct a violation, but there was no definition of what constituted “correcting” it.

STP has recently published an update to its publication Complete Guide to Hazardous Materials Enforcement and Liability: California and also publishes the following related guides:


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Tags: Corporate Governance, Business & Legal, Health & Safety, Environmental risks, Environmental, Hazcom