The Safe Drinking Water and Toxic Enforcement Act of 1986, codified in the California Health & Safety Code sections 25249.5, et seq. (referred to as “Proposition 65”), became a pioneering and widely influential act of legislation where The People of the State of California have declared their right “[t]o be informed about exposures to chemicals that cause cancer, birth defects, or other reproductive harm.” Proposition 65, § 1(b). To effectuate this goal, Health & Saf. Code, § 25249.6 requires that consumers be provided with a “clear and reasonable warning” before being exposed to substances listed by the State of California as causing cancer or reproductive toxicity.
Health and Safety Code, section 25249.6 states, “[n]o person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual . . .”
According to California AG's website, "Proposition 65 litigation has identified specific chemical exposure concerns and led to regulatory reforms to benefit public health at the state and national level."
As the result of a litigation, a violator may be ordered to:
Cease committing the violation
Pay civil penalties of up to $2,500 per day for each violation, paid as 75% to Attorney General of California, 25% to the enforcer, using the formula- see section "Statutory Penalties-Formula" above
Pay costs of pre-NOV and pre-litigation research, purchases, shipping, testing, and prosecution
Litigation costs
Experts fees
Attorney fees
Cooperativeness of the defendant in correcting the violation is the factor a court must consider in determining penalties. A line of defense is another matter shown to be influential in courts, as the violation largely involves powerful ethical and corporate responsibility contentions.
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