Brown Seeks To Rewrite Toxins Law

He says ‘unscrupulous lawyers’ are misusing the Safe Drinking Water and Toxic Enforcement Act, or Proposition 65, by seeking monetary gain from lawsuits. An overhaul may prove difficult.

SACRAMENTO — Responding to complaints from businesses, Gov. Jerry Brown is proposing an overhaul of California’s 26-year-old landmark clean water and anti-toxins law that he said is being misused by “unscrupulous lawyers” filing lawsuits.

At issue is the Safe Drinking Water and Toxic Enforcement Act, or Proposition 65, approved by voters in 1986. It requires product manufacturers, retailers and property owners to post signs warning the public if goods or premises contain chemicals known to the state of California to cause cancer or birth defects.

The law also allows the attorney general, local district attorneys or private attorneys and citizens to sue to enforce the act.

Brown proposed revisions Tuesday to limit attorney’s fees; require plaintiffs to present more information to support their claims; reconsider levels of cancer-causing chemicals to better reflect the danger to humans; and give the public more details about the specific exposure they face and how to avoid it.

“Proposition 65 is a good law that’s helped many people, but it’s being abused by unscrupulous lawyers,” Brown said in a statement. “This is an effort to improve the law so it can do what it was intended to do — protect Californians from harmful chemicals.”

Supporters credit the law — and the threat of lawsuits — with forcing businesses to pull tainted goods or reformulate them with safer ingredients. Critics contend that it also has created a cottage industry of lawyers looking to collect lucrative financial settlements from businesses doing little or nothing wrong.

Brown faces a tough challenge in rewriting the initiative, the only one of its kind in the country. Changing it will require approval from at least two-thirds of both houses of the Legislature.

To win approval, the governor would need to overcome potentially powerful opposition from the environmental groups that originally put Proposition 65 on the books. They have successfully used the law to force the removal of such toxic elements as lead from common products, including candy, children’s costume jewelry, lunch boxes and faucets.

Business lobbies, which have spent decades trying to overturn or weaken Proposition 65, praised the governor’s effort. The initiative has helped ensure proper information on the products California consumers buy, said Jack Stewart, president of the California Manufacturers & Technology Assn. “At the same time, the complicated regulation has turned into a lawsuit factory for plaintiff attorneys bringing frivolous class-action lawsuits.”

Environmentalists and attorneys were more skeptical.

“We’re wary because of our long experience with the political process on this particular law,” said David Roe, the Oakland public interest attorney who was the initiative’s principal author. “If anyone suggests a pinhole in Proposition 65, in jumps the chamber to drive a truck through it.”

Roe, however, called “appropriate” the governor’s effort to eliminate so-called frivolous lawsuits. He argued that it would be good for the environment if legal maneuvering in Proposition 65 cases were limited, and criteria for warnings were upgraded to reflect the most up-to-date science.

Much of the governor’s overhaul plan involves the way Proposition 65 cases are handled by “private attorneys general” — individuals and law firms sending business owners notices of an alleged violation, such as failure to post adequate warning signs. The notices could be followed with lawsuits if the accusation is not addressed within 60 days.

Brown’s effort is not the only one in Sacramento aimed at limiting alleged abuses by some attorneys bringing Proposition 65 cases.

Assemblyman Mike Gatto (D-Los Angeles) introduced a bill, AB 227, after he got a complaint from a constituent. The Eagle Rock businessman said he was being threatened with fines and lawsuits alleging that he hadn’t posted enough warning signs in his Eagle Rock bar and restaurant.

Gatto said he is eager to work with the governor to find “a path forward that is supported by business groups, environmental justice groups, practicing attorneys and the labor community.”

Reprinted from The Los Angeles Times (5/7/2013)