Proposition 65 Advisory

OSHA Signals that Certain Proposition 65
Stipulated Judgments Are Unenforceable and Should Be Invalidated

A recent letter from the federal Occupational Safety and Health Administration ("OSHA") to the California Division of Occupational Safety and Health ("DOSH") offers support for companies seeking relief from consent decrees entered in Proposition 65 cases brought before OSHA prohibited enforcement of Proposition 65 against "out-of-state" manufacturers.

The February 26, 1999 letter is the latest correspondence between the two agencies in OSHA's eighteen-month effort to ensure that DOSH promulgates regulations necessary to implement OSHA's June 6. 1997 order approving the incorporation of Proposition 65 into the State Standard, thus allowing its enforcement in California workplaces, subject to three important conditions. These conditions are: (a) Proposition 65 may not be enforced against manufacturers or distributors of workplace products that are manufactured outside the State; (b) compliance with requirements under the federal or State standard for workplace warnings is sufficient to comply with Proposition 65; and (c) DOSH must monitor "supplemental" enforcement of Proposition 65 by private party "bounty hunters" and take steps to ensure that these conditions are observed. 62 Fed. Reg. 31,159 (June 6, 1997).

In its quest to secure a specific timetable for DOSH's adoption of such regulations, OSHA indicates in its most recent letter to DOSH that settlement agreements that are contrary to OSHA's conditions of approval, negotiated between private party "bounty hunters" and manufacturers or distributors of products produced out-of-state, ought not be enforced, even if they were approved by California courts, and that DOSH should promulgate regulations to that effect.

According to OSHA, "it is the responsibility of the parties to such agreements to initiate any necessary court action to alter the agreements, [but] promulgation of a regulation [indicating that such provisions should be invalidated] would be a significant means of informing these parties and the courts of the approval conditions and the opportunity to invalidate nonconforming consent decrees." Letter from Paula O. White, OSHA Director of Federal-State Operations, to Dr. John Howard, Chief, California DOSH, dated February 26, 1999 (emphasis added).

These admonitions apply to dozens (perhaps hundreds) of consent decrees entered in cases brought by Proposition 65 bounty hunters against manufacturers and distributors of workplace chemical products prior to OSHA's June 6, 1997 order. Many stipulated injunctions arising from such suits impose onerous requirements and restrictions on the distribution in California of workplace chemical products manufactured outside the state. In a companion letter to an U.S. Congressman by which it transmitted its February 26 letter to DOSH, OSHA makes it clear that provisions of such decrees that are contrary to the conditions of approval ought not to be enforced: "As OSHA's decision on the inapplicability of Proposition 65 is based on the underlying statutory provisions of the Occupational Safety and Health Act, it would apply equally to enforcement actions in California before and after that decision." Letter from Charles N. Jeffress, Assistant Secretary for Occupational Safety and Health, U.S. Department of Labor, to The Hon. James M. Talent, Chairman of the U.S. House of Representatives' Committee on Small Business, dated March 4, 1999. In both letters, OSHA also makes it clear that parties subject to provisions of stipulated judgments that are not in conformance with the conditions of approval should be able to obtain relief in the California courts.

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