The 1986 law allows citizens to file violation notices – called “60-day notices” – against businesses that fail to post warnings about any of the more than 750 chemicals in their products or on their properties, even if the exposure level is minuscule. Among other things, the law is credited with prompting businesses worldwide to reduce lead content in dishes, crystal, calcium supplements and other products.
But it also has enriched a cadre of attorneys and citizen plaintiffs, called “private enforcers,” who negotiate out-of-court settlements after blanketing an industry with hundreds of claims. In the last six years settlements have generated more than $55 million in payments to private parties, much of it for attorney’s fees, according to the California attorney general’s office.
Attorney General Bill Lockyer has begun challenging more of these cases and some judges are looking at them more skeptically.
In a March ruling dismissing a $500,000 settlement, state appellate Justice David G. Sills said it’s “absurdly easy” to bring a case. Plaintiffs can go after businesses based on “a few molecules” of a harmful substance and don’t need to prove any harm, Sills said. The burden of proof is on a business to show the exposure level is safe, rather than on the plaintiff to show it’s unsafe.