CDA at negotiating table for Prop. 65 reform effort

With the legislature entering the final month of its 2013 session, CDA was an active participant in negotiations with the governor’s office, the legislature, and a variety of business, legal and consumer stakeholders in an attempt to improve the state’s Proposition 65 warning notice and litigation laws.

Consensus legislation has not yet been agreed to or introduced, but discussions are continuing.

Prop. 65, passed by voter initiative in 1986 and officially known as the Safe Drinking Water and Toxic Enforcement Act, requires businesses with 10 or more employees to provide “clear and reasonable warning” if the product or business location may expose employees or consumers to a chemical known to the state to cause cancer or reproductive toxicity. The state Office of Environmental Health Hazard Assessment (OEHHA) uses expert scientific panels to develop what is now a list of more than 800 chemicals that require warning notices. Either the Attorney General or private parties can enforce the warning requirement through litigation. 

While state regulations provide general standards for the content of Prop. 65 warning notices, as a result of lengthy litigation, CDA has since 2003 provided its members with a specific, court-approved warning notice for dental amalgam and other restorative materials. Prior to that agreement, dozens of dental offices had been sued by plaintiffs’ attorneys for failure to provide an adequate warning — there has been little or no known litigation in this area since then. CDA also provides a separate, recommended notice requirement for nitrous oxide, which was added to the Prop. 65 chemicals list a few years later.   

On May 7, 2013, Gov. Jerry Brown announced an effort to develop “reforms to strengthen and restore the intent of Proposition 65.” The governor’s press release declared, “the administration, through the California Environmental Protection Agency, will work closely with the Legislature and stakeholders to revamp Proposition 65 by ending frivolous ‘shake-down’ lawsuits, improving how the public is warned about dangerous chemicals and strengthening the scientific basis for warning levels.”

Shortly after the announcement, the Brown administration first hosted several informal meetings with large, separate groups of business, environmental and legal organizations with an interest in Prop. 65. Subsequently, the administration began to hold more formal negotiating sessions with a single, smaller, invitation-only group of stakeholder organizations in an attempt to reach agreement on a reform package. CDA is the only health care organization that has been invited to participate in these meetings. In addition, on July 30 OEHHA held a “pre-regulatory workshop” in Sacramento to discuss and obtain feedback on possible regulatory changes they intend to pursue regardless of the outcome of the legislative effort.   

“CDA has expended significant time and resources over the years assisting our members with Prop. 65 compliance, so we are pleased to have been invited to participate in these reform discussions,” said Robert Hanlon, DMD, chair of CDA’s Government Affairs Council. “Our current warning notice for restorative materials has protected dentists from litigation for the last 10 years, so our primary concern is to make sure that any reforms do not re-open that agreement or create potential for new legal threats against our members for trivial or nonexistent violations. We also are stressing that Prop. 65 should not unduly restrict legitimate health care treatment discussions between providers and patients.” 

No formal legislation has been introduced as a result of these discussions.

The 2013 legislative session is scheduled to end on Sept. 13.