NFIB Objects to Proposition 65 Abuse in California

In 1986 the voters of California adopted an initiative known as Proposition 65 (colloquially “Prop. 65.”). If you live in California—or if you have visited recently—you see Prop. 65 warnings everywhere you go. The Act requires businesses to prominently display information warning consumers of the existence of specific chemicals known to the State of California to cause cancer. And indeed there is a list of chemicals that business owners are presumed to be aware of.

As a result, everywhere you go in the Golden State—whether in a parking garage, an auto-repair shop, a coffee shop, office buildings, etc.—you are likely to run into little signs warning you that you might be exposed to chemicals that might be cancerous. Of course, these signs are so pervasive that it is easy to ignore them. But if you are a small business owner in California, you can’t ignore Prop. 65—not without risking big-time legal claims.

As has been widely reported, there is a major problem in California with Prop. 65 lawsuit abuse because the Act allows environmental organizations—or trawling plaintiffs attorneys—to act as private attorney generals, bringing lawsuits against any business that is out of compliance. There are some individuals and groups who literally go searching for businesses that have neglected to put up a Prop. 65 warning. And instead of a little warning, they are hit with a costly lawsuit. Usually small business owners are in the greatest peril because they simply don’t realize when they are required to put up a Prop. 65 warning.

This has become such a problem that even Jerry Brown’s Administration has been contemplating potential reforms. This is an issue NFIB has been heavily involved with in California, as part of NFIB’s on-going mission to curb on lawsuit abuse.

But now we are observing a new troubling trend. Environmentalists have apparently decided to begin using Prop. 65 lawsuits as leverage to coerce businesses into agreeing to change business practices that are completely unrelated to Prop. 65. In a lawsuit currently pending in Alameda County Superior Court environmentalist plaintiffs are seeking to force businesses to agree to stop using chemicals that have nothing to do with Prop. 65.

Prop. 65 simply requires businesses to post a warning when they use specifically listed chemicals. But, here the plaintiffs are seeking to go beyond that list to use the threat of a lawsuit to force businesses to stop using chemicals that were never on the list. From our perspective this is a blatant abuse of the legal system. Accordingly, NFIB recently joined with the American Chemistry Council in an amicus brief opposing environmentalist efforts to force a settlement that goes beyond the scope of what Prop. 65 ever intended.

Here the lawsuit—predicated on an alleged violation of Prop. 65—has been used to force the business to stop using chemicals that are beyond the scope of the Act. And of course small business owners simply lack the resources to fight back. When hit with a lawsuit like this, they will usually have little choice but to seek a settlement, and to capitulate to terms that—if allowed—would go beyond anything Prop. 65 was ever intended to reach.

Unfortunately the Court declined to consider NFIB and ACC’s policy concerns—as the Court issued an order rejecting our amicus brief this morning. As such, NFIB remains gravely concerned over these sue-and-settle practices and continued Prop. 65 abuse. Indeed, if this settlement is approved, it will only emboldened environmentalists and trawling plaintiffs to continue these abusive practices. This only underscores the need for reform.

About these ads

About Luke Wake

Luke A. Wake is a senior staff attorney at the NFIB Small Business Legal Center. Wake has particular expertise on environmental and land use issues, and has worked on numerous other constitutional issues and matters of importance to small business owners. He is an ardent defender of private property rights, which he believes are essential to the free enterprise system and the foundation of American liberty. As a strong advocate of individual rights and economic liberties, he has built his career defending small business interests. Since joining the NFIB Legal Center, Wake has focused on a whole host of issues, from employment law matters to regulatory compliance. In addition to serving as a resource for small business owners, Wake remains committed to the Legal Center’s pledge to ensure that the voice of small business is heard in the nation’s courts. He is also working to advance small business interests in law review articles, including publications in the Berkeley Journal of Law & Ecology, the Texas Journal of Law and Politics, and Competition Magazine. See R.S. Radford & Luke A. Wake, Deciphering and Extrapolating: Searching for Sense in Penn Central, 38 Ecology L.Q. 731, 746-747 (2011); Damien M. Schiff, Luke A. Wake, Leveling the Playing Field in David v. Goliath: Remedies to Agency Overreach, 17 Tex. L. Rev. & Pol. 97 (2012); Jarod M. Bona and Luke A. Wake, The Market-Participant Exception to State-Action Immunity From Antitrust Liability, J. of Antitrust and Unfair Competition of the State Bar of Ca., Vol. 23, No. 1, 156 (Spring 2014); James S. Burling and Luke A. Wake, Takings and Torts: The Role of Intention and Foreseeability in Assessing Takings Damages, in Condemnation 101: Making the Complex Simple in Eminent Domain 449-51 (ALI-ABA Committee on Continuing Professional Education eds. 2011). Before joining the Legal Center’s team, Wake completed a prestigious two-year fellowship as an attorney in the Pacific Legal Foundation’s (PLF) College of Public Interest Law. Wake is a graduate of Case Western Reserve University School of Law in Cleveland Ohio. He is a member of the California Bar, the District of Columbia Bar, and the U.S. Supreme Court Bar. He completed his undergraduate studies at Elon University in North Carolina in 2006 where he focused on political theory and corporate communications.
This entry was posted in Legal, Regulations, Small Business and tagged , , . Bookmark the permalink.

Leave a Reply

Please log in using one of these methods to post your comment: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s