Definitions.
For purposes of this chapter:
(a) “Person” means an individual, trust, firm, joint stock company, corporation, company, partnership, limited liability company, and association.
(b) “Person in the course of doing business” does not include any person employing fewer than 10 employees in his or her business; any city, county, or district or any department or agency thereof or the state or any department or agency thereof or the federal government or any department or agency thereof; or any entity in its operation of a public water system as defined in Section 116275.
(c) “Significant amount” means any detectable amount except an amount which would meet the exemption test in subdivision (c) of Section 25249.10 if an individual were exposed to such an amount in drinking water.
(d) “Source of drinking water” means either a present source of drinking water or water which is identified or designated in a water quality control plan adopted by a regional board as being suitable for domestic or municipal uses.
(e) “Threaten to violate” means to create a condition in which there is a substantial probability that a violation will occur.
(f) “Warning” within the meaning of Section 25249.6 need not be provided separately to each exposed individual and may be provided by general methods such as labels on consumer products, inclusion of notices in mailings to water customers, posting of notices, placing notices in public news media, and the like, provided that the warning accomplished is clear and reasonable. In order to minimize the burden on retail sellers of consumer products including foods, regulations implementing Section 25249.6 shall to the extent practicable place the obligation to provide any warning materials such as labels on the producer or packager rather than on the retail seller, except where the retail seller itself is responsible for introducing a chemical known to the state to cause cancer or reproductive toxicity into the consumer product in question.
Added by initiative measure, Proposition 65, approved November 4, 1986, effective January 1, 1987. Amended Stats 1994 ch 1010 § 162 (SB 2053); Stats 1996 ch 1023 § 238 (SB 1497), effective September 29, 1996.
Amendments:
1994 Amendment: Added (1) “Definitions” at the beginning; (2) “limited liability company,” in subd (a); and (3) “or her” after “10 employees in his” in subd (b).
1996 Amendment: Substituted “Section 116275” for “Section 4010.1” in subd (b).
Editor's Notes- For legislative findings, declarations, severability, and effective date of initiative, see the Note to Ch 6.6 (H & S C §§ 25249.5 et seq.).
Cross References: Required warning: H & S C § 25249.6.
Exemption from warning requirement: H & S C § 25249.10.
NOTES OF DECISIONS
In an action by the Attorney General against manufacturers and distributors of drinking water faucets sold and used in California, alleging that defendants violated the Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Saf. Code, §§ 25249.5-25249.13), enacted by the electorate as Prop. 65, in that each knowingly discharged or released a proscribed chemical (lead contained in faucets) into a source of drinking water, the trial court erred in sustaining defendants' demurrers on the ground that residential water faucets and the water within them are not “sources of drinking water” within the meaning of the act. Although the word “source” has several possible meanings, one meaning is “point of emanation,” and faucets and faucet water can reasonably be understood to be a “source” of drinking water in this sense. This definition comports with the purpose and intent of the act: to protect drinking water, i.e., water that comes from the tap, from contamination. Further, an administrative letter, which may have implied that leaching from plumbing facilities was not covered by the act, was not entitled to deference, since the agency explicitly declined to take a definitive position on this question. Finally, although the act has provisions for civil penalties, the term need not be strictly construed against the state when proscribed conduct is being defined and penalties themselves are not at issue. People ex rel. Lungren v. Superior Court (1996) 14 Cal 4th 294, 58 Cal Rptr 2d 855, 926 P2d 1042, 1996 Cal LEXIS 6518.
As applied to dental amalgam, the Medical Device Amendments to the federal Food, Drug and Cosmetics Act (21 USCS §§ 321-394) do not preempt California's Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65, H & S C §§ 25249.5-25249.13). The consumer warning requirement under Proposition 65 is not specific enough to trigger preemption because it is not the kind of requirement that Congress and the FDA feared would impede the ability of federal regulators to implement and enforce specific federal requirements. Also, the FDA's failure to impose a warning requirement on dental amalgam was not, by itself, preemptive. Committee of Dental Amalgam Mfrs. & Distribs. v. Stratton (1996, CA9 Cal) 92 F3d 807, 1996 US App LEXIS 19189.
Whether or not posting signs in dental offices would have been a more dependable means of warning patients than including inserts in the packages that could be read only by the dentists or their assistants, the manufacturer had fulfilled its obligations under H & S C §§ 25249.6, 25249.11(f), and 25249.12, if the insert that accompanied its product came within any of the safe harbor provisions. Given the professional obligations of those to whom the information on the insert was directed, there was no basis to assume that such a person was not likely to read and understand the warnings, even though the warning was not ideally placed. Environmental Law Foundation v Wykle Research, Inc. (2005, 1st Dist) 134 Cal App 4th 60, 35 Cal Rptr 3d 788, 2005 Cal App LEXIS 1798.
Consumers' lawsuit alleging that manufacturers of vaccines failed to warn of exposure to a toxic substance as required by Health & Saf. Code, § 25249.6, lacked merit because the standard warnings approved under federal law are deemed clear and reasonable warnings for prescription drugs by Cal. Code Regs., tit. 22, § 12601(b)(2)(A), which was validly enacted in accordance with Health & Saf. Code, § 25249.12, subd. (a); obtaining informed consent provided a specific warning beyond the requirements of Health & Saf. Code, § 25249.11, subd. (f), and there was no conflict with the provisions of Health & Saf. Code, § 25249.10. Vaccine Cases. William F. Bothwell v. Abbott Labs. (2005, Cal App 2nd Dist) 134 Cal App 4th 438, 36 Cal Rptr 3d 80, 2005 Cal App LEXIS 1840.
Nothing in the regulations or the final statement of reasons in support of the Safe Drinking Water and Toxic Enforcement Act of 1986, Cal. Health & Safety Code §§ 25249.8 and 25249.11 required an exact identity of medium. Moreover, as remedial statute, the Act had to be broadly construed to effectuate its remedial purpose; the conditions only had to be substantially identical, not absolutely identical. As You Sow v. Conbraco Indus., (2005) 135 Cal App 4th 431, 37 Cal Rptr 3d 399, 2005 Cal. App. LEXIS 2025.