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Amendment to Prop 65 That Affects Restaurants Passed by Legislature- Larger Efforts On Hold

Posted in Agricultural Law, Prop 65

The attempt by the Brown Administration to revise Proposition 65 for the most part was unsuccessful, at least for this year. Attorneys for Weintraub Tobin assisted the California League of Food Processors with respect to the legislation. What started out as an attempt to provide relief from the overuse of the statute by plaintiffs’ attorneys, became a battle to hold off attempts on their part to further their own goals for more specific labeling with respect to chemical and the chemicals specific effects.

The Administration is still hopeful that changes in the regulations rather than the statute that address similar concerns can be made. Industry in turn hopes their views on these issues will be addressed as well. A hearing was held in July to discuss these changes.

The good news for some is that a separate piece of legislation limiting Prop 65 lawsuits against some small businesses has passed in the legislature, and is on its way to the Governor–AB 227 (Gatto).  The original  legislation would have allowed all targets of Prop. 65 private party lawsuits to have 14 days to cure the problem and thereby avoid an ensuing lawsuit. The bill was subsequently amended to narrow its application only to exposure to alcohol, environmental tobacco smoke and engine exhaust. Under the bill businesses who fall within these parameters can avoid subsequent litigation by paying a small fine and posting the proper notice. The explanation(see below) and text of the legislation can be found here.

This bill would require a person filing an enforcement action in the public interest for certain specified exposures to provide a notice in a specified proof of compliance form. The bill would prohibit an enforcement action from being filed by that person, and would prohibit the recovery of certain payments or reimbursements, if the notice to the alleged violator alleges a failure to provide a clear and reasonable warning for those specified exposures and, within 14 days after receiving the notice the alleged violator corrects the alleged violation, pays a civil penalty in the amount of $500 per facility or premises, and notifies the person bringing the action that the violation has been corrected via a specified proof of compliance form. The bill would specify that the alleged violator may correct the violation, pay the civil penalty, and serve a correction notice on the person who served notice of the violation only one time for a violation arising from the same exposure in the same  facility or on the same premises.

The following are the exposures that are covered:

(A) An exposure to alcoholic beverages that are consumed on the alleged violator’s premises to the extent onsite consumption  is permitted by law;

 (B) An exposure to a chemical known to the state to cause cancer or reproductive toxicity in a food or beverage prepared and sold on the alleged violator’s premises primarily intended for immediate consumption on or off premises, to the extent of both of the following are true, (i) the chemical was not intentionally added. (ii) The chemical was formed by cooking or similar preparation of food or beverage components necessary to render the food or beverage palatable or to avoid microbiological contamination. 

C) An exposure to environmental tobacco smoke caused by entry of persons (other than employees) on premises owned or operated by the alleged violator where smoking is permitted at any location on the premises. An exposure to chemicals known to the state to cause cancer or reproductive toxicity in engine exhaust, to the extent the exposure occurs inside a facility owned or operated by the alleged violator and primarily intended for parking noncommercial vehicles.