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  • Ben Margot / Associated Press

    In this on June 14, 2006 file photo, Eric Andresen, whose company manages apartments in San Francisco, poses beside a Proposition 65 warning sign at his San Francisco office on June 14, 2006. Andresen felt the sting of a Proposition 65 lawsuit when his company shelled out settlement fees to a Costa Mesa, Calif., attorney who has filed many Proposition 65 suits against apartment owners. Gov. Brown's administration said May 7, 2013, it wants to make changes to Prop 65, passed by voters three decades ago requiring business to post warnings of dangerous chemicals.

  • Assemblyman Mike Gatto, D-Los Angeles, says he "would be honored to work" with Gov. Jerry Brown on updating Prop. 65.

Jerry Brown joins move to rewrite California's Prop. 65

Published: Tuesday, May. 7, 2013 - 5:01 pm
Last Modified: Wednesday, May. 8, 2013 - 7:46 am

Gov. Jerry Brown is throwing his weight behind a push to update Proposition 65, California's defense against exposure to toxic chemicals.

Passed by voters in 1986, Proposition 65 sought to shield the state's water supply from contamination and to protect consumers by requiring companies to post clear warnings about harmful chemicals in products.

The law has been "a resounding success" as a consumer safeguard, California Environmental Protection Agency Secretary Matthew Rodriquez said. But it is time to amend the law, he said, citing a proliferation of profit-seeking lawsuits and scientific strides that render obsolete some of the standards set 27 years ago.

"It's not an unqualified success," Rodriquez said. "Unfortunately, it has been abused in the past by those who have essentially used it to shake down small businesses and generate fees by bringing cases with little or no benefit to public health."

In criticizing those who exploit Proposition 65 for profit, the Brown administration is aligning itself with a push in the Legislature to limit lawsuits that target, for example, restaurants that haven't posted signs warning customers about the hazards of alcohol consumption.

Rodriquez pointed to "the interest in the Legislature" in Proposition 65 reform and to a bill by Assemblyman Mike Gatto, D-Los Angeles, as the administration's impetus for getting involved. He called Gatto's effort "admirable" and said the administration has sought "to build on some of those efforts."

"It's not every day a piece of your legislation sparks a statewide reform effort," Gatto said in a statement. "I'm thrilled that the governor is engaging on this issue and would be honored to work with him."

The administration has not yet decided whether it will incorporate its ideas into an existing bill such as Gatto's or have a lawmaker carry a separate piece of legislation. Because the requirements for making changes to voter-approved laws such as Proposition 65 are more stringent, the Legislature would need to pass the Brown administration's bill by a two-thirds margin.

Rodriquez offered a few different ways to crack down on attorneys who sue businesses over failing to post adequate Proposition 65 warnings, including capping attorney fees or requiring plaintiffs to show stronger evidence that a business is in violation.

Companies are required to put up warnings about products that contain above a certain level of chemicals California categorizes as harmful. Some of those thresholds are out of date, Rodriquez said.

Currently, a business is exempted from needing to post a warning about potential reproductive harm if a given chemical is present in a concentration 1,000 times below the level at which it is known to cause observable effects in humans. Requiring a warning for a vanishingly small trace of chemicals may be excessive, Rodriquez said.

"This level can be unrealistically low for some chemicals," he said. "It's our sense in talking to our scientists here in the state that these warnings are unnecessary and cause undue litigation. So we want to bring some realism into the warning level requirements."

As businesses have sought to comply with Proposition 65, the number of posted warnings has multiplied to the point that critics say they have become near-ubiquitous. The Brown administration is looking at ways to make the signs contain more information about what chemicals are present and how people can avoid exposure.

"These blanket warnings dilute the very purpose of the warning," Rodriquez said. "They leave the consumer wondering, 'What specifically am I being exposed to?' "

Tom Scott, executive director of the organization California Citizens Against Lawsuit Abuse, called the governor's decision to insert himself into the debate a "game changer."

"To have him weigh in from the executive branch to clearly say there's an abuse going on here, I think it's huge," Scott said.

Others were more cautious in their praise. The Center for Environmental Health, a group that uses Proposition 65 enforcement as leverage to have companies remove chemicals from their products, only recently dropped its opposition to Gatto's bill after the assemblyman hammered out some amendments.

The organization's executive director, Michael Green, said its leaders "genuinely share the governor's intention," particularly the desire to have clearer posted warnings. But Green said doing too much to relax penalties would remove an incentive for businesses to remove chemicals from their products so they can avoid wading into a quagmire of fees and litigation.

And while some lawyers do profit handsomely from Proposition 65 settlements, Green said that his organization draws on that money to fund its operations, taking on cases the attorney general's office doesn't have time for.

"The companies no longer have an incentive to take action to protect workers in their facilities or consumers buying their stuff if the nonprofit community can't afford to do the science and bring the cases," Green said.

Call Jeremy B. White, Bee Capitol Bureau, (916) 326-5543. Follow him on Twitter @jeremybwhite.

© Copyright The Sacramento Bee. All rights reserved.

Read more articles by Jeremy B. White



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