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California Bill Would Require Additional Information for Prop 65 Notices of Violations


A recently introduced bill in the California legislature, AB 3004, would require parties filing notices of violation under Proposition 65 to provide additional information in their certificates of merit.

By way of background, Proposition 65 (also known as the Safe Drinking Water and Toxic Enforcement Act of 1986) requires companies to provide warning statements where their products cause an “exposure” to carcinogens and/or reproductive toxicants, unless an exemption or exception under the law applies. This statute may be enforced by the California Attorney General, local district and city attorneys, or private citizens if the state declines to do so or does not act within 60 days after it is notified of an alleged violation. Notices made by private citizens are required to file a certificate of merit with the Attorney General. This certificate states that the person executing it has consulted with one or more persons with relevant experience or expertise who have reviewed information regarding the exposure to the listed chemical, and that, based on that information, believes there is a reasonable and meritorious case for the private action.

AB 3004 would require that if a laboratory report is submitted with the certificate of merit, it includes the brand name, if any, of the tested product. AB 3004 also would require that the testing be conducted within a year of the certificate of merit's submission. In addition, the bill would require any communication made by the Attorney General in response to the report to be provided to all parties to the settlement or judgment.

The bill is sponsored by the Asian Food Trade Association, and there currently is no recorded opposition. Rep. Mike Fong, the lead author of the bill, explained in the Assembly Bill Policy Committee Analysis that "[p]rivate enforcers who are simply seeking settlement money may reuse the same laboratory test on multiple products over a number of years. This hurts small businesses who must pay sometimes thousands of dollars to settle the claim while possibly not receiving credible information." 

The bill is currently before the Appropriations Committee.