In October 2013, the California Legislature amended California Health and Safety Code ยง 25249.5 et seq. (Proposition 65) to allow certain types of violations to be corrected by businesses in a less burdensome and expensive way. If a business allegedly exposes customers or employees to: (1) alcoholic beverages; (2) chemicals in a food or beverage prepared and sold on the premises for immediate consumption on or off the premises (provided the chemical was not intentionally added but rather formed by cooking to avoid microbiological contaminants); (3) environmental tobacco smoke (or smoking permitted in certain locations); or (4) engine exhaust (if created inside a facility owned by the violator), all such exposures are covered by the amendment in the following way:
If a complaining attorney intending to enforce Proposition 65 sends a business a Notice of Violation pertaining to any of the conditions described above, the business will now have 14-days to: (1) correct the condition (i.e., either eliminate it or warn about it in a manner prescribed by Proposition 65); (2) pay a $500 fine; and (3) notify the complaining attorney that the violation has been corrected and deliver the $500 civil penalty to the complaining attorney within 30-days of service of the initial Notice of Violation.
The satisfaction of an alleged violation in the manner described above may be done only one time. If warning signs are not kept posted, or if the same violation occurs again, there is no further protection afforded by the amendment. Rather the full weight of Proposition 65 may be invoked by the complaining attorney, assuming the business is not following through or maintaining the corrections it previously made.
The amendment is meant to put a brake on a spate of recent Proposition 65 “shakedown” claims involving businesses, such as restaurants, that grilled beef over an open flame, offered a parking garage for customers where exhaust fumes might accumulate, served alcoholic beverages, or allowed smoking in a certain area. The amendment does not mean that it is now safe to ignore potential Proposition 65 violations in one’s own business until finally notified by a complaining attorney. Otherwise, a business will find itself scrambling to get legal advice, order and place warning signage, and generally have to remediate and pay for the violation, all within 14 days. It remains best practice to take a proactive approach and post the requisite warnings about potential Proposition 65 exposures before a notice of violation is served on your business.
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