Our View: Bill would curtail abuse of Prop. 65

May 6, 2013 

We have great respect for the legal profession. Most attorneys adhere to a strict code of ethics and many provide service to the downtrodden, victims and underdogs.

Then there is Miguel A. Custodio Jr.

Custodio has found at least two niches since he graduated from UCLA law school in 2007. A few years ago, he attracted public attention by sending letters to small businesses claiming that they had failed to comply with the Americans With Disabilities Act.

More recently, Custodio has been threatening small-business people who neglect to post Proposition 65 signs warning customers that some product they serve is known by the state to cause cancer or be a reproductive toxic agent.

The Sacramento Bee's Jeremy B. White reported Saturday that Custodio has sent no fewer than 60 notices faulting restaurants for failing to properly warn customers about alcohol.

The letters state that the aggrieved person -- Custodio seems to represent a rotating cast of four or five plaintiffs -- intends "to file a private enforcement action as provided for in the Act for the alleged violations by the Violator, unless (VIOLATOR) agrees in an enforceable written instrument to (1) recall the listed products so as to eliminate further exposures to the identified chemicals; or (2) affix clear and reasonable Proposition 65 warning labels; and (3) pay an appropriate civil penalty." There might be words other than "extortion" or "shake-down" to describe the missives. But we can't think of what those words might be. Rather than risk being sued, many shopkeepers will settle by paying "an appropriate civil penalty."

Approved by voters in 1986, Proposition 65 is titled the Safe Drinking Water and Toxic Enforcement Act, not the Bottom-Feeders Enrichment Act. Proposition 65 has served an important function by helping to inform the public about chemicals that could cause them harm. Attorney General Kamala Harris relied on Proposition 65 in a recent lawsuit seeking to force grocery chains to stop selling candy that contains lead.

Proposition 65 is emblematic of a fundamental problem with initiatives. The measure has been on the books for 26 years, frozen in time. By its terms, the initiative can only be amended by a two-thirds vote of the Legislature, and only in ways that further the goals of the measure.

Assemblyman Mike Gatto, a Los Angeles Democrat, is pushing legislation that gives businesses two weeks to correct failures without having to "pay an appropriate civil penalty." His Assembly Bill 227 won passage in the Assembly Judiciary Committee, with support from environmentalists and plaintiffs' attorneys who don't want to take the blame for Custodio and his ilk.

Gatto's bill would further the goal of the measure in a variety of ways, not the least of which would be to restore confidence in a law that is being abused. As an added benefit, the bill would help the legal profession, most often a noble pursuit, help itself.

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