The California Assembly passed a bill (AB 1123) earlier this month that would require litigants in private Proposition 65 enforcement actions to notify the state Attorney General (AG) of any appeals in such cases. Current law only requires plaintiffs in a Prop 65 action to provide notice to the AG 60 days in advance of filing a complaint and upon settlement. In theory, the 60-day notice gives the AG an opportunity to decide if the state should pursue the case, which occurs in a very small percentage of Prop 65 matters, typically those that involve important public policy issues.
However, as an analysis of the bill prepared for the legislature notes, “the Attorney General may be unaware of pending appeals that address issues of statewide concern with respect to the enforcement or interpretation of Prop 65.” The current bill would correct that situation and afford the AG the opportunity to weigh in with the court regarding the state’s interest in any particularly significant issues raised by the case.
While the legislation appears worthwhile, it is yet another example of California tinkering with various elements of the Prop 65 program — such as the massive set of new regulations adopted in 2016 regarding the mechanics of how to provide Prop 65 warnings — while failing to address the fundamental problems with the program: namely, the difficulties associated with deciding when and whether to provide a warning, particularly when faced with the prospect of having to defend a determination not to warn in court against a private plaintiff who knows that it will cost a business less to settle the matter than proceed with litigation.