On October 5, 2013, Proposition 65 (the Safe Drinking Water and Toxic Enforcement Act of 1986) was amended to provide alleged violators a safe harbor for private Prop. 65 lawsuits. This safe harbor only applies to limited, specified exposures but could save an alleged violator from paying thousands of dollars per violation. This safe harbor, if complied with as set forth below, prevents a private lawsuit from being filed and payment of Plaintiff’s attorney fees. An alleged Prop. 65 violator may take advantage of this safe harbor if the following are satisfied:

  • (1) Notice of a Prop. 65 violation was served on or after October 5, 2013;
  • (2) The alleged violator failed to provide clear and reasonable earning regarding one or more of the following (and no other violation):

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 if:

(i) the chemical was not intentionally added; and

 (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;

d. 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.

  • (3) Within 14 days after service of the notice, the alleged violator must:

a. Correct the alleged violation;

b. Agree to pay a civil penalty of $500 per facility; and

c. Notify (in writing) the person that served the notice of the alleged violation that the violation has been corrected.

  • (4) The alleged violator must pay the violation within 30 days of service of the Prop. 65 notice.

It should be noted that this safe harbor can only be used one time for a violation arising from the same exposure in the same facility or on the same premises and does not prevent the Attorney General, a district attorney or city attorney, or a prosecutor from filing an action against the alleged violator.
However, the civil penalty would be reduced to reflect any payment made by the alleged violator for the same alleged violation.

Assembly Bill No. 227, Chapter 581 can be found here.

Health and Safety Code Section 25249.7 can be found here.

To discuss the contents of this article, please contact Castellon & Funderburk LLP at (213) 623-7515.