Busiest Summer Recess in Recent History

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The Assembly and Senate reconvene after their July summer recesses on August 5 and August 12, 2013, respectively. With the on time passage of the State Budget this year, July promised to be a more relaxed time of year for legislative policy staff and lobbyists. It was hoped that the break would provide time for rest and vacations to help recharge everyone’s batteries before the final six weeks of the legislative session. Unfortunately, that has not been the case.

July 2013 has been one of the busiest summer recesses in recent history for many lobbyists, including CLFP staff, and the Governor’s policy staff. The Governor announced back in May that he wanted to reform Proposition 65 (Prop 65) to curb frivolous lawsuits and make warnings more meaningful. CLFP has taken a keen interest in this issue given the number of lawsuits filed against food manufacturers in recent history.

Staff at CLFP has been heavily engaged in the Governor’s stakeholder group since May in an effort to draft legislative language to reform and modernize Prop 65. The CLFP Food Safety, Nutrition and Labeling Committee formed a Prop 65 Working Group to provide CLFP staff with technical assistance. In addition, CLFP is engaging with a general business coalition organized by the California Chamber of Commerce as well as a more focused food and agriculture coalition. These coalitions have been instrumental in helping frame the issues and provide more cohesive comments and feedback to the Governor’s staff on the policy proposals.

The issues being discussed for possible inclusion in the legislative reform package include:

• Curbing Frivolous Lawsuits: Statutory provisions are being negotiated to make it more difficult and less lucrative for unscrupulous bounty hunter trial attorneys to file frivolous lawsuits against manufacturers and retailers. These provisions include requirements that plaintiff attorneys provide more detailed information on the initial 60 day notices and Certificates of Merit, reforms to the payments in lieu of civil penalty provisions, and bifurcation of attorney fees from settlement agreements. While CLFP is generally supportive of litigation reform, we argue that these modest proposals are not far reaching enough.
  
• Enhanced Warning Requirements: A statutory framework is being discussed that will provide direction and parameters to the Office of Environmental Health Hazard Assessment (OEHHA) in the development of regulations for clear and reasonable warnings that will include minimum elements such as the name of the chemical, the health effects, the route of exposure, and how to avoid or reduce exposure. This has been heavily debated and largely opposed by the CLFP and the general business community as being excessive and likely to lead to increased litigation exposure.
  
• Exemptions from the Warning Requirement: The Governor’s Office and OEHHA are proposing that the 1000-fold safety factor for determining the Maximum Allowable Daily Level (MADL) for reproductive toxicants be reduced to 100-fold if human studies are available. They argue that this will give OEHHA more flexibility to use the best science available and not have to rely on animal studies. There is considerable debate on this issue as CLFP, and many others in the business community, fear that this will lead to even lower allowable levels of chemicals, including lead. On the other hand, the plaintiff attorneys and the public health advocates are concerned that this will lead to higher allowable levels.
  
  There is still a lot of work to be done, and not a lot of time to do it. The Governor has said that he wants a bill to be passed this year. That only gives six weeks to get a comprehensive reform package through the Legislature with a required two-thirds vote and to the Governor’s desk. It is a very ambitious plan and it remains to be seen if all stakeholders can come to an agreement and rally behind a reform package.
  
  If you or someone in your company is interested in serving on the CLFP Food Safety, Nutrition, and Labeling Committee and the Prop 65 Working Group, please contact Trudi Hughes at trudi@clfp.com.

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