Proposition 65 Advisory

The California Attorney General has published a revised proposed regulation to implement the new statutory requirements for private enforcer actions under Proposition 65. This proposal responds to public comments on the initial proposal published in the California Regulatory Notice Register on March 1, 2002. The revised regulation amplifies on the information that a private party enforcer of Proposition 65 must provide to support the new "Certificate of Merit" that must accompany a Notice of Intent to Sue under SB 471.

The regulation will require a prospective bounty-hunter to certify that he or she "has consulted with one or more persons with relevant and appropriate experience or expertise who has reviewed facts, studies, or other data regarding the exposure to the listed chemical that is the subject of the action, and that he or she believes there is a reasonable and meritorious case for the private action." This in turn will require a bounty-hunter to provide documentation of exposure to a listed chemical, and a reasonable basis for concluding that there is merit to each element of the action on which the plaintiff will have the burden of proof at trial. The copy of the Certificate served on the Attorney General must identify the persons consulted and relied upon, and the facts, studies, or other data reviewed by those persons. Where a Certificate fails to meet these requirements, the noticing party would have no authority to commence a private enforcement action.

The revised regulation also will require motions for judicial approval of a Proposition 65 settlement to be served on the Attorney General at least forty-five days prior to hearing. It further includes guidelines for various settlement provisions, such as "clear and reasonable" warnings.

The proposed regulation is available at http://caag.state.ca.us/prop65/pdfs/proposedregsmod.pdf. If you would like further information, please contact one of the attorneys below.

McKenna Long & Aldridge, L.L.P., distributes its Advisories to clients and friends of the firm free of charge. If you would like to request additions (or deletions) to our distribution list, please call Nina MacLeay at 213-243-6063 or send email to nmacleay@mckennalong.com.

For more information, please contact: