The Safe Drinking Water and Toxic Enforcement Act of 1986, codified in the California Health & Safety Code sections 25249.5, et seq. (referred to as “Proposition 65”), became a pioneering and widely influential act of legislation where The People of the State of California have declared their right “[t]o be informed about exposures to chemicals that cause cancer, birth defects, or other reproductive harm.” Proposition 65, § 1(b). To effectuate this goal, Health & Saf. Code, § 25249.6 requires that consumers be provided with a “clear and reasonable warning” before being exposed to substances listed by the State of California as causing cancer or reproductive toxicity.

 

Health and Safety Code, section 25249.6 states, “[n]o person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual . . .”

 

According to California AG's website, "Proposition 65 litigation has identified specific chemical exposure concerns and led to regulatory reforms to benefit public health at the state and national level."

As the result of a litigation, a violator may be ordered to:  

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• Cease committing the violation

• Pay civil penalties of up to $2,500 per day for each violation, paid as 75% to Attorney General of California, 25% to the enforcer, using the formula- see section "Statutory Penalties-Formula" above 

• Pay costs of pre-NOV and pre-litigation research, purchases, shipping, testing, and prosecution  

• Litigation costs 

• Experts fees

• Attorney fees

 

Cooperativeness of the defendant in correcting the violation is the factor a court must consider in determining penalties. A line of defense is another matter shown to be influential in courts, as the violation largely involves powerful ethical and corporate responsibility contentions.

An exposure to a chemical in a consumer product is one “which results from a person’s acquisition, purchase, storage, consumption, or other reasonably foreseeable use of a consumer good, or any exposure that results from receiving a consumer service.” (Cal. Code Regs., tit. 27, § 25602, subd. (b).) California Code of Regulations, title 27, section 25603, subdivision (c) states that “a person in the course of doing business . . . shall provide a warning to any person to whom the product is sold or transferred unless the product is packaged or labeled with a clear and reasonable warning.

 

”Proposition 65 provides that any “person who violates or threatens to violate” the statute may be enjoined in a court of competent jurisdiction. (Health & Saf. Code, § 25249.7). The phrase “threaten to violate” is defined to mean creating “a condition in which there is a substantial probability that a violation will occur.” (Id., § 25249.11, subd. (e).) Violators are liable for civil penalties of up to $2,500 per day for each violation of the Act. (Id., § 25249.7 subd. (b).) 

Vast majority of Proposition 65 cases settle in pre-litigation- see more here. The reasons are obvious: an early settlement spares negative publicity, may save retail and distribution channels, and enormously saves time and expense for a defendant.

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After receiving NOV, an alleged violator has 60 days to provide an enforcer with their verified sales numbers and agree in writing to the standard terms—see main terms in "Stage VII" section here.

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In case of a trial, a losing defendant pays all pre-litigation and litigation costs, experts' and attorneys' fees of the plaintiff. The defendant will be paying much larger civil penalties—see section "Statutory Penalties-Formula" above—to Attorney General of California because statutory penalties continue to accrue during the litigation and will be counted for each day of violation starting one year prior to NOV, up to the date of a verdict or a consent judgement. In addition, cooperativeness of the defendant in correcting the violation and the line of defense are factors a court will consider in determining penalties. 

Violators of the law- manufacturers, retailers, distributors, brand holders- are liable for civil penalties of up to $2,500 per day for each violation of the Act. (Id., § 25249.7 subd. (b).) Civil penalties of up to $2,500 per day for violation attach to each can/pack/individual unit sold, are paid as 75% to Attorney General of California, 25% to the enforcer, using the formula: 

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$2,500 x cans/packs/units sold x 365 days x years from one year prior to NOV to the date of court decision (or settlement).

 

For computation of fair and equitable penalties enforcers use a comparative table with historical data of past penalties paid by other defendants—think "Sentencing Guidelines."

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The violation is assessed based on toxicity levels, sales numbers, defendant's resolve and ability to quickly remove dangerous products from the market or put up warnings, their willingness to cooperate, the line of defense and its ethical controversy, including defendant's standing on corporate responsibility.

In cases where an alleged violator's defense is to justify some egregious amounts of toxins in their products, some enforcers have chosen to step up in their role of protecting public and publicize with news outlets their test results and public information about defendants’ sourcing and manufacturing practices.

 

They share their findings in press conferences and press releases, and update the media on the case development.

 

Defendants may find courts reluctant to limit public enforcers, acting in their rightful capacity of public health watch dogs, in voicing their concerns about the area of their expertise- public health, and delivering the vital information about dangerous foods and consumer products they continue to find in supermarkets during the lengthy litigations.