Last month, the California Office of Environmental Health Hazard
Assessment ("OEHHA") adopted new Proposition 65 warning
regulations. Much of the discussions regarding these new
regulations have centered on the warning requirements that become
effective, after an approximately two-year phase-in period, in
August 2018.
There were, however, amendments to Prop 65 settlement terms,
penalty amounts and attorney's fees in civil actions filed by
private persons that became effective on October 1, 2016.
These amendments have "flown under the radar" but
actually may be more problematic than the proposed new
warnings.
Proposition 65 permits private citizens (known by the
plaintiff's bar as "citizen enforcers") to initiate
enforcement actions, and, when they do, they are entitled to 25% of
any penalties assessed by the courts and attorney's fees.
An additional form of payment, called
"payments in lieu of civil penalties" or
"PILPS," are also permitted under the
