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WALTERS: The Hayden legacy: Prop. 65 lawsuits

  • (WILLIAM BROWN / Tribune Media Services)

Tom Hayden gained fame — or notoriety — as an anti-Vietnam War activist in the 1960s, later moved to California and attempted, with mixed results, to become a political power in the state.

Hayden, then married to actress Jane Fonda, waged a splashy primary challenge to U.S. Sen. John Tunney, founded an organization to support left-of-center candidates, negotiated a political peace pact with Jerry Brown during the latter’s first governorship and spent 18 years in the state Legislature.

Largely ignored by his legislative colleagues, Hayden’s time in the Capitol was anticlimactic, but as he faded into relative obscurity after leaving Sacramento in 2000, he left behind one achievement — Proposition 65. At the height of his political prominence, Hayden, other politicians and a coalition of environmental groups placed the measure on the 1986 ballot.

While California voters of that era were fairly conservative, they overwhelmingly passed it, thus decreeing that businesses must warn consumers of chemicals in their products that might cause cancer or other health problems.

Protracted political and legal battles were waged between its advocates and business groups over implementation, particularly which chemicals would be covered. By and by, however, Californians became used to seeing vague Proposition 65 warnings posted on store walls and product packages to the effect that some unknown substance within might cause cancer.

Attorneys general would occasionally garner publicity by suing someone for failing to comply with Proposition 65 — but its most lasting effect has been to create a lucrative cottage industry of private lawsuits or threats to sue.

In 2012, according to a recent report from the state Department of Justice, there were 397 private Proposition 65 settlements that totaled $20.4 million, of which $14.6 million, or 71.3 percent, was paid to a handful of attorneys who initiated the actions. Business groups complain that “drive-by lawsuits” usually involve technical violations or simple oversights but force defendants to pay up rather than face the hassle and expense of trials.

This year, critics picked up a valuable ally in Jerry Brown, now in his second gubernatorial incarnation. His administration has criticized the spate of Proposition 65 lawsuits and is supporting legislation, Assembly Bill 227, that would give businesses hit with notices of violation time to correct them and pay token civil penalties.

The bill, carried by Assemblyman Mike Gatto, D-Los Angeles, has cleared the Assembly and its first Senate committee. Its supporters include the trial lawyers’ lobby, Consumer Attorneys of California, and so far, no opposition has emerged. But a companion bill aimed at narrowing the list of chemicals affected has stalled.

Dan Walters is a columnist for the Sacramento Bee.

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