Browse Previous Page | Table of Contents | Browse Next Page

HEALTH AND SAFETY CODE

Division 20 Miscellaneous Health and Safety Provisions

Chapter 6.6 Safe Drinking Water and Toxic Enforcement Act of 1986

§ 25249.5. Prohibition on contaminating drinking water with chemicals known to cause cancer or reproductive toxicity

§ 25249.6. Required warning before exposure to chemicals known to cause cancer or reproductive toxicity

§ 25249.7. Enforcement

§ 25249.8. List of chemicals known to cause cancer or reproductive toxicity

§ 25249.9. Exemptions from discharge prohibition

§ 25249.10. Exemptions from warning requirement

§ 25249.11. Definitions

§ 25249.12. Implementation

§ 25249.13. Preservation of existing rights, obligations, and penalties

[Added by initiative measure, Proposition 65, approved November 4, 1986, effective January 1, 1987.]


Note- This initiative measure, proposition 65, approved at the November 4, 1986, election, provides as follows:

SEC. 1. The people of California find that hazardous chemicals pose a serious potential threat to their health and well-being, that state government agencies have failed to provide them with adequate protection, and that these failures have been serious enough to lead to investigations by federal agencies of the administration of California's toxic protection programs. The people therefore declare their rights:
(a) To protect themselves and the water they drink against chemicals that cause cancer, birth defects, or other reproductive harm.
(b) To be informed about exposures to chemicals that cause cancer, birth defects, or other reproductive harm.
(c) To secure strict enforcement of the laws controlling hazardous chemicals and deter actions that threaten public health and safety.
(d) To shift the cost of hazardous waste cleanups more onto offenders and less onto law-abiding taxpayers.
The people hereby enact the provisions of this initiative in furtherance of these rights.
SEC. 6. If any provision of this initiative or the application thereof is held invalid, that invalidity shall not affect other provisions or applications of the initiative which can be given effect without the invalid provision or application, and to this end the provisions of this initiative are severable.
SEC. 7. To further its purposes this initiative may be amended by statute, passed in each house by a two-thirds vote.
SEC. 8. This initiative shall take effect on January 1, 1987.
Cross References: Hazardous waste control: H & S C §§ 25100 et seq.
Definitions: H & S C § 25249.11.
Hazardous materials data: H & S C §§ 25410 et seq.
Hazardous materials release response plans and inventory: H & S C §§ 25500 et seq.
Hazardous materials information and consulting services: H & S C §§ 25550 et seq.
Environmental quality assessment: H & S C §§ 25570 et seq.
Food, drugs, and cosmetics: H & S C §§ 26000 et seq.
Regulations of foods and food facilities: H & S C §§ 27000 et seq.
Collateral References: Regulations regarding drinking water: 22 Cal Code Reg §§ 64401 et seq.
Am Jur 2d (Rev) Pollution Control §§ 255 et seq.
Franchisor environmental liability. CEB Bus L Practitioner Vol. 7 No. 4 p 216.
Miller & Starr, Cal Real Estate 2d §§ 29:47, 29:56.
Law Review Articles:
Improving California's Safe Drinking Water and Toxic Enforcement Act Scientific Advisory Panel through regulatory reform. 77 Cal LR 1211.
Proposition 65, asbestos and the real estate industry. 6 Cal Real Prop J No. 2 p 29.
Complying with asbestos regulations in California: The first step in limiting liability. 7 Cal Real Prop J No. 3 p 35.
Proposition 65's right-to-know provision: Can it keep its promise to California? 14 Ecology LQ 685.
The warning game: evaluating warnings under California's Proposition 65 23 Ecology LQ 303.
Interpreting the purposes of initiatives: California's Proposition 65. 40 Hastings LJ 1031.
California's toxics initiative: Making it work. 39 Hastings LR 1195.
Advising project lenders on Proposition 65, Safe Drinking Water and Toxic Enforcement Act of 1986. 12 LA Lawyer No. 3 p 32.
California's Proposition 65 and the limits of information economics. 49 Stanford LR 1223.
Right-to-know: Implications of risk communication research for regulatory policy. 23 UCD LR 333.
Proposition 65: A new concept in toxic chemical regulation. 16 Western St LR 109.
NOTES OF DECISIONS
Health & Saf. Code, § 25249.8, enacted as part of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65), and the act itself, are concerned only with those substances that authoritative bodies have concluded are known to cause cancer or reproductive toxicity. Thus, despite the incorporation into the act by reference of the federal Hazard Communication Standard (HSC) (29 C.F.R. § 1910.1200), in accordance with the provisions of Health & Saf. Code, § 25249.8 and Lab. Code, § 6382, subd. (d), the list of harmful chemicals required by § 25249.8 to be published by the Governor need not include all those chemicals which, though noncarcinogenic, are included within the scope of the HSC, but only the known carcinogens and reproductive toxins listed there. AFL-AFL-CIO v. Deukmejian (1989, Cal App 3d Dist) 212 Cal App 3d 425, 260 Cal Rptr 479, 1989 Cal App LEXIS 740.
Proposition 65 (Safe Drinking Water and Toxic Enforcement Act of 1986; Health & Saf. Code, § 25249.5 et seq.), which requires businesses that expose individuals to toxic chemicals in the course of doing business to first give warnings to such individuals, applies to employees of such businesses and entitles them to Proposition 65 warnings in the work place. However, since Proposition 65 exempts public employers and businesses with less than 10 employees from its application, those employees are not entitled to such warnings. California Lab. Federation v. Occupational Safety & Health Stds. Bd. (1990, Cal App 1st Dist) 221 Cal App 3d 1547, 271 Cal Rptr 310, 1990 Cal App LEXIS 742, review denied (1990, Cal) 1990 Cal LEXIS 4732.
Proposition 65 (Safe Drinking Water and Toxic Enforcement Act of 1986; Health & Saf. Code, § 25249.5 et seq.), which requires businesses that expose individuals to toxic chemicals in the course of doing business to first give warnings to such individuals, is a state law governing occupational safety and health within the meaning of Proposition 97, which requires the state plan for occupational safety and health to be consistent with such state laws. Even though Proposition 65 applies outside the workplace and exempts public employers and businesses with less than 10 employees from its application, it is an occupational safety and health law within the scope of Proposition 97. However, the state plan was not consistent Proposition 65, even though the plan referred to the Hazard Communication Standard (29 C.F.R. § 1910.1200), promulgated under the federal Occupational Safety and Health Act (29 USCS § 651 et seq.), because there were situations in which Proposition 65 would apply but the federal standard would not. Thus, a writ of mandate directing the California Occupational Safety and Health Standards Board to incorporate the applicable provisions of Proposition 65 in the state plan was warranted. California Lab. Federation v. Occupational Safety & Health Stds. Bd. (1990, Cal App 1st Dist) 221 Cal App 3d 1547, 271 Cal Rptr 310, 1990 Cal App LEXIS 742, review denied (1990, Cal) 1990 Cal LEXIS 4732.
In an action for declaratory and injunctive relief against the Governor, the Secretary of the Health and Welfare Agency, and his deputy secretary, seeking a declaration that Cal. Code Regs, tit. 22, § 12501, providing that human consumption of food does not constitute an “exposure” for purposes of Prop. 65 (Health & Saf. Code, § 25249.5 et seq., requiring warnings as to chemicals known to cause cancer or reproductive toxicity) to a listed chemical in the food to the extent the chemical is “naturally occurring,” the trial court did not err in granting summary judgment for defendants, since the regulation was not in conflict with the governing statutes. Evidence of the electorate's intent in enacting the proposition indicated that it was intended to regulate toxic substances that are deliberately added or put into the environment by human activity. Use of terms such as “knowingly and intentionally” and “putting” implies that culpable human conduct resulting in toxins being added to the environment was the activity to be controlled. Nicolle-Wagner v. Deukmejian (1991, Cal App 2d Dist) 230 Cal App 3d 652, 281 Cal Rptr 494, 1991 Cal App LEXIS 528.
In a declaratory relief action, the trial court properly construed provisions of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Saf. Code, § 25249.5 et seq.), providing that “warnings for consumer product exposures which include the methods of transmission and the warning messages as specified in this subdivision shall be deemed to be clear and reasonable,” Cal. Code Regs., tit. 22, § 12601, subd. (b), which lists such methods, and Cal. Code Regs., tit. 22, § 12601, subd. (b)(1)(C), which specifies one such method as a “system of signs, public advertising identifying the system and toll-free information services or any other system that provides clear and reasonable warnings,” as requiring the toll-free system to be evaluated on its specific facts just as any other non-safe harbor method of warning. The provisions therefore exclude toll-free information services based warning systems from the safe-harbor provisions that are deemed to be clear and reasonable. The toll-free system as a whole is adequate only if it is shown to give clear and reasonable warnings. Ingredient Communication Council, Inc. v. Lungren (1992, Cal App 3d Dist) 2 Cal App 4th 1480, 4 Cal Rptr 2d 216, 1992 Cal App LEXIS 88, review denied (1992, Cal) 1992 Cal LEXIS 1964.
In a declaratory relief action concerning the interpretation of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Saf. Code, § 25249.5 et seq.), the trial court did not err in concluding that a consumer notification and warning program, using a toll-free telephone system in combination with newspaper advertising and in-store signs to promote consumer inquiries using the toll-free system, failed to provide a clear and reasonable warning as required by the act. Substantial evidence supported the trial court's finding that the system was not reasonably calculated, considering the alternative methods available and the circumstances, to make the warning message available to the individual prior to exposure to the product. Ingredient Communication Council, Inc. v. Lungren (1992, Cal App 3d Dist) 2 Cal App 4th 1480, 4 Cal Rptr 2d 216, 1992 Cal App LEXIS 88, review denied (1992, Cal) 1992 Cal LEXIS 1964.
California Safe Drinking Water and Toxic Enforcement Act of 1986 (“Proposition 65” ), which requires manufacturers of products containing designated substances to provide adequate warnings to consuming public that their products pose health risk, is not expressly or impliedly preempted by federal law, since point-of-sale warnings do not constitute cautionary labeling nor directions for use preempted by federal law, and no congressional purpose is frustrated by such warnings. Chemical Specialties Mfrs. Ass'n v. Allenby (1992, 9th Cir Cal) 958 F2d 941, 1992 US App LEXIS 3808, cert den (1992) 506 US 825, 121 L Ed 2d 44, 113 S Ct 80, 1992 US LEXIS 5691.
The Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Safety Code, § 25249.5 et seq.), does not violate the California Constitution in granting standing to “any person” to sue in the public interest. Unlike the federal Constitution, which limits federal court jurisdiction to “cases and controversies” and requires a plaintiff to plead and prove standing by showing a concrete and particularized injury-in-fact, traceable to the action of the defendant and likely to be redressed by a favorable court decision, the California Constitution contains no “case or controversy” requirement. The California Constitution specifically provides that state constitutional rights do not depend on the federal Constitution (Cal. Const., art. I, § 24). Thus, a suit by a citizen in the undifferentiated public interest is justiciable, or appropriate for decision in a state court. The interests of individual citizens in assuring that carcinogenic chemicals are not placed in their drinking water, and that appropriate warnings are given of exposure to such chemicals, are substantial and appropriate for vindication by a private right to sue. Few if any commodities are more essential to life or more certain to be consumed by every citizen than drinking water. National Paint & Coatings Assn. v. State of California (1997, Cal App 2d Dist) 58 Cal App 4th 753, 68 Cal Rptr 2d 360, 1997 Cal App LEXIS 845, review denied (1998, Cal) 1998 Cal LEXIS 140.
In an action brought by two paint manufacturers' associations against the state and others to invalidate the private citizen enforcement provisions of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Safety Code, § 25249.5 et seq.), on the ground that private enforcement violates constitutional separation of powers principles by interfering with or impairing executive branch enforcement, the trial court properly entered a judgment dismissing the complaint. Plaintiffs' complaint did not allege facts sufficient to show any significant likelihood that the executive's enforcement of the act had been impeded in any way, or that the empowerment of private citizens to sue had in any fashion undermined the enforcement or objectives of the act, or that private suits had resulted in unguided application of the act. Further, the materials attached with the complaint strongly disproved plaintiffs' claims. The Attorney General, the executive officer whose power plaintiffs claimed had been impaired, attested in his memorandum, attached with the complaint, to the generally satisfactory experience with the private enforcement mechanism. National Paint & Coatings Assn. v. State of California (1997, Cal App 2d Dist) 58 Cal App 4th 753, 68 Cal Rptr 2d 360, 1997 Cal App LEXIS 845, review denied (1998, Cal) 1998 Cal LEXIS 140.

Browse Previous Page | Table of Contents | Browse Next Page