Proposition 65 Advisory

Proposition 65 Advisory 01-IV

Proposition 65 Advisory 01-IV

Attorney General May Sponsor Amendments to Proposition 65

Deputy Attorney General Edward G. Weil announced yesterday that the Office of the Attorney General is considering proposals to amend Proposition 65. The Attorney General is developing such initiatives within his own office to amend the law in order to curb abuses of the statute, and to protect its capacity to serve its intended purposes, and will be willing to consider recommendations from the public.

Mr. Weil appeared as the keynote speaker on March 8, 2001 at the Proposition 65 News Seminar, in San Francisco. Delivering a luncheon address entitled "The Good, the Bad, and the Overrated," he commented on Proposition 65's achievements, its shortcomings, and developments that he viewed as neither as good nor as bad as advocates claimed. Among the achievements, Mr. Weil noted that lawsuits brought by the state had led to reformulation of ceramic dinner ware and brass plumbing materials to decrease exposure to lead in food and drinking water, and many other products. In some cases, previous attempts to impose tighter product standards by legislation or regulation had been frustrated.

Among the shortcomings was "overwarning," the proliferation of warnings that have little meaning and are distributed only as a protection against Proposition 65 lawsuits. Mr. Weil commented that some lawsuits inspire warnings that may not be appropriate, do little to advise the public of meaningful risks and may not be required under the statute, and that such warnings diminish respect for Proposition 65 and the goals it was intended to achieve. He acknowledged that many warning suits are brought merely for their settlement value, where the presence of a Proposition 65-listed chemical is documented but poses no meaningful risk, and the cost of defending them lead to settlements that do not promote the purposes of the law.

Mr. Weil emphasized that the Attorney General supports Proposition 65. He stunned the audience, however, by indicating that his Office is studying ways in which the statute might be amended to curb abuses, and thereby ensure that its beneficial purposes not get sacrificed in more sweeping changes that might be initiated by others. He stressed that any changes suggested probably would be of a procedural nature, and would not change the basic thrust of the law.

McKenna & Cuneo will be communicating with its clients further on this subject in the near future. If you would like to discuss this development, please contact one of the attorneys below.

McKenna & Cuneo, 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 e-mail Nina MacLeay at nina_macleay@mckennacuneo.com or call 213-243-6063.

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