Prop 65 Certificate of Merit- Assembly Bill No. 1583 Passed

The Governor signed AB No. 1583. The bill that would allow discovery of the basis for the certificate of merit in a 60 Day Notice was signed by the governor:

If the notice made by a person bringing an action in the public interest alleges a violation of the act’s warning requirement, existing law requires that the notice include a certificate of merit stating that the person executing the certificate has consulted with one or more persons with relevant and appropriate experience or expertise who has reviewed facts, studies, or other data regarding the exposure to the listed chemical that is the subject of the action, and that, based on that information, the person believes there is a reasonable and meritorious case for the                                                         private action. 

Existing law requires factual information sufficient to establish the basis of the certificate of merit to be attached to the certificate of merit that is served on the Attorney General.

This bill would require, if the Attorney General believes there is no merit to the action after reviewing the factual information sufficient to establish the basis for the certificate of merit and meeting and conferring with the noticing party regarding the basis for the certificate of merit, the Attorney General to serve a letter to the noticing party and the alleged violator stating the Attorney General believes there is no merit to the action, as specified.

and

This bill would make the basis for the certificate of merit discoverable to the extent that the information is relevant to the subject matter of the action and not subject to the attorney-client privilege, the attorney work product privilege, or any other legal privilege.

Prop 65: Legislature Considers Bill Revising Certificates of Merit

Prop 65: Legislature  Considers Bill Revising Certificates of Merit

The legislature is considering a bill (AB 1583) that would revise the rules governing certificates of merit. Currently anyone alleging a violation of Prop. 65 must complete a certificate of merit showing they have consulted with an appropriate expert who agrees that there is a reasonable and meritorious basis for the action. The party providing the notice  must provide information backing up the certificate of merit to the state Attorney General's office as part of the 60-day notice of violation they must lodge before filing a lawsuit. 

The current law limits the alleged violator's access to information in the certificate of merit to material that "is relevant to the subject matter of the action and not subject to the attorney-client privilege, the attorney work product privilege, or any other legal privilege." An alleged violator may currently only pursue discovery of the basis of the certificate of merit during litigation if the court has undertaken its own review of the certificate

The new Bill would:

1) Require the California Attorney General (AG) to serve a letter to the noticing party and the alleged violator stating that the Attorney General believes there is not merit to the action, if, after reviewing the factual information alleged to establish the basis for the certificate of merit, and meeting and conferring with the noticing party regarding the basis for the certificate of merit, the Attorney General determines there is not merit to the action; and specifies that the Attorney General’s decision not to serve a letter shall not be construed as an endorsement of the action.

 2) Provides that the basis for the certificate of merit is discoverable to  the extent that the information is relevant to the subject matter of the action and not subject to the attorney-client privilege, the attorney work product privilege, or any other legal privilege.

 3) Requires the Governor’s Office of Business and Economic Development to post, in a conspicuous location on its Internet Web site, any informational materials provided to businesses relating to a business’s obligation under state law, as well as a specified disclaimer.

 4) Finds and declares that this bill furthers the purposes of Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986. .

The latest version of the bill also adds a requirement that the Governor's Office of Business and Economic Development provide businesses information regarding their obligation to comply with Prop. 65. Hearings are scheduled  in the senate for early July 2017.