The Chanler Group

Cliff Chanler, the founder of The Chanler Group, was featured in Bay Area TV station KTVU’s news report about a possible overhaul of Proposition 65.

California State Assemblymember Mike Gatto recently introduced Assembly Bill 227 (“AB 227”), a bill aimed at providing certain small businesses allegedly in violation of Proposition 65 a 14-day “cure” period during which they can correct the violation.  A dramatically revamped version of the bill passed the California State Assembly’s Committee on the Judiciary last week to provide a 14-day correction period to three narrow categories of exposures.

The Special Report offers viewers a glimpse into The Chanler Group’s work, including cutting open a piece of furniture in order to test the foam padding for toxic flame retardants.  As noted in the Special Report, The Chanler Group is dedicated not to just filing claims or making money, but to reforming the industry and removing toxic chemicals from consumer products altogether.

A recent study by the University of Cincinnati College of Medicine shows that children who were exposed to flame retardant compounds in the air and dust before they were born may suffer from behavior and cognition difficulties during early childhood and onward, Scientific American reported.

Researchers collected blood samples from 309 pregnant women early in their second trimester and tracked the children through the first five years of their lives.  They found a correlation between spikes in the levels of one class of flame retardant, polybrominated diphenyl ethers (PBDEs), and cognitive and behavioral difficulties during early childhood, including lower IQs and hyperactivity.

Two other recent large U.S. studies have also shown associations between prenatal exposure to flame retardant chemicals and developmental deficits and reduced IQ.  Animal testing suggests that the chemicals disrupt the endocrine system, specifically thyroid regulation and thyroid hormones, which drive growth and development, especially brain development. 

Humans are exposed to flame retardant chemicals, including PBDEs, by inhaling contaminated air or ingesting contaminated dust.  Though PBDEs were phased out of manufacturing in 2004, they are still present in old furniture and in homes, as the chemicals move out of the furniture and into household dust.  Small children are then at increased risk of encountering these hazardous chemicals, as they spend more time close to the floor and often put their hands in their mouths.

Other hazardous flame retardant chemicals include TCEP and TDCPP, known as chlorinated Tris.  Both TCEP and TDCPP have been designated by the State of California as chemicals that are known to cause cancer.  Children are especially at risk from exposure to these flame retardant chemicals, which are also widespread and migrate to household dust and into the air.  The Chanler Group’s clients have detected high levels of TDCPP and TCEP in dozens of upholstered furniture products, including products intended for infants and children.

The Chanler Group represents citizen enforcers who, acting in the public interest, commence actions against businesses offering products for sale in California that contain chemicals known to cause cancer or reproductive harm without first providing the health hazard warning required by Proposition 65. Citizen enforcers bringing Proposition 65 actions in the public interest may obtain a Court Judgment imposing civil penalties, an injunction requiring reformulation of products, and/or provision of health hazard warnings. The Chanler Group has represented citizen enforcers of Proposition 65 for more than twenty years.

The Chanler Group, the nation’s leading law firm that represents citizens acting in the public interest to enforce Proposition 65, announced today that it supports the reforms proposed by Governor Edmund G. Brown Jr. to strengthen and restore the intent of Proposition 65 to protect Californians from exposures to harmful chemicals found in consumer products.  The Chanler Group agrees there is a need to deter frivolous lawsuits, and to improve how the public is warned about dangerous chemicals.  The effectiveness and efficiency of Proposition 65 depends on the ability to screen out meritless suits.

“Our clients have consistently offered to exchange test results with companies selling goods with hidden toxicants.  Often, they don't have anything to share since most of their goods are made in China and then claim ‘no knowledge’ of the ingredients as a convenient defense,” said Clifford A. Chanler, founder of The Chanler Group.  “The companies should have been testing from the get go; hopefully, one part of the amendment will be to impose more significant civil penalties on companies that operate with reckless indifference to toxic exposures – and don't test their items before selling them to citizens.”

Many of the proposed reforms have long been implemented by The Chanler Group in their own practice, including supporting our clients’ certificates of merit with laboratory test results and other information from scientific experts demonstrating that consumers would likely be exposed to the listed chemicals.  The Chanler Group also shares such laboratory test results with the alleged violator, provided they agree to keep such results confidential.  The Chanler Group has been a vocal opponent of generic warnings, and favors requiring stronger, more specific language in the health hazard warnings provided to consumers so that they can make more informed choices, and are more aware of what chemicals they are being exposed to, the risks of such exposures, and how they can protect themselves.

“The use of generic warnings in public places for two decades has significantly undermined the statute and clearly not advanced the public health,” said Chanler.  “It is high time that such warnings be much more informative or eliminated for good.”

“Each year, our clients are responsible for approximately 10,000 separate SKUs (individual products) being reformulated to remove carcinogens and reproductive toxicants.  Some companies only sell 1,000 units of an SKU per year but others are sold in the millions,” said Chanler.  “All told, we estimate that 500,000,000 consumer products that have had previously hidden hazardous chemicals are reformulated through our clients' efforts annually.  The proposed reforms will serve to increase these figures and hopefully deter the increasing use of harmful toxicants in consumer products.”

The Chanler Group represents citizen enforcers who, acting in the public interest, commence actions against businesses offering products for sale in California that contain chemicals known to cause cancer or reproductive harm without first providing the health hazard warning required by Proposition 65. Citizen enforcers bringing Proposition 65 actions in the public interest may obtain a Court Judgment imposing civil penalties, an injunction requiring reformulation of products, and/or provision of health hazard warnings. The Chanler Group has represented citizen enforcers of Proposition 65 for more than twenty years.

On April 23, 2013, Sacramento County Superior Court Judge David I. Brown granted California Attorney General (AG) Kamala Harris’s motion for judgment on the pleadings against the complaint of Plaintiffs Anthony Held, Russell Brimer, and John Moore, clients of The Chanler Group, and dismissing the case.  Plaintiffs challenged the legality of the AG’s regulation, Section 3003 of Title 11 of the California Code of Regulations, requiring citizen enforcers such as plaintiffs to serve motions to approve a Proposition 65 settlement on the AG at least 45 days before the hearing on the motion, rather than 16 court days before the hearing as allowed by Code of Civil Procedure (CCP) section 1005(b).

Judge Brown’s tentative ruling, posted the day before the hearing held on April 18, 2013, was to grant the AG’s request to dismiss the case based on the judge’s initial determination that there was no conflict between the AG’s regulation, requiring service of a motion to approve a Proposition 65 settlement at least 45 days before the hearing, and CCP section 1005(b), allowing a motion to be filed exactly 16 court days before the hearing.

At the hearing on April 18, 2013, the judge was an active participant in the oral arguments presented over the course of an hour by the parties.  According to Laurence Haveson, TCG counsel appearing on behalf of plaintiffs, on at least one occasion during oral argument, the judge appeared to be changing his mind about his tentative ruling.  At the hearing, the judge gave due consideration to plaintiffs’ argument that the AG’s regulation prevented Prop 65 plaintiffs from serving the AG with a motion to approve a settlement on the same day that plaintiffs filed the motion to approve, if the motion was set to be heard exactly 16 days from the date of filing and service on the AG.  Rather than adopting the tentative ruling at the hearing, Judge Brown took the matter under submission.

In a written minute order issued on April 23, 2013, Judge Brown ultimately decided to adopt the tentative ruling, finding that “because a litigant can comply with the Attorney General's regulation and Code of Civil Procedure section 1005, subdivision (a), there is no conflict” between the regulation and the statute.

With all due respect to Judge Brown and the California Attorney General, plaintiffs Held, Brimer, and Moore disagree with the ruling and believe, as they argued in their opposition papers, that by adopting its regulation, and imposing a 45-day notice requirement for motions to approve Proposition 65 settlements in the public interest, the Attorney General has unconstitutionally exercised legislative power by enlarging the time required to file and serve a noticed motion.  With the adoption of the AG’s regulation, plaintiffs cannot exercise their statutory right to file such motions exactly 16 court days before the hearing on the same day that they serve the AG with a copy of the motion.  The regulation is also contrary to the intent of the California Legislature, which had determined that filing a motion 16 court days before the hearing was a "reasonable balance" between the court's need for time to review motions and litigants' desire to have their motions heard in a timely manner.

Because the 45-day rule will continue to create delays in plaintiffs’ ability to secure Prop 65 settlements in the public interest, thus postponing the collection of millions of dollars in civil penalties payable to the State of California and postponing deadlines for companies to reformulate their products to virtually eliminate the presence of chemicals known to cause cancer and reproductive harm, plaintiffs intend to appeal the ruling to the California Court of Appeal for the Third Appellate District.

The Chanler Group represents citizen enforcers who, acting in the public interest, commence actions against businesses offering products for sale in California that contain chemicals known to cause cancer or reproductive harm without first providing the health hazard warning required by Proposition 65. Citizen enforcers bringing Proposition 65 actions in the public interest may obtain a Court Judgment imposing civil penalties, an injunction requiring reformulation of products, and/or provision of health hazard warnings. The Chanler Group has represented citizen enforcers of Proposition 65 for more than twenty years.

Read the Sacramento County Superior Court’s Minute Order Below

This week, the California State Assembly’s Committee on the Judiciary voted 10-0 to pass a dramatically revamped version of the proposed legislative amendment to Proposition 65, known as Assembly Bill (“AB”) 227.  The bill was originally written to provide anyone receiving a 60-Day Notice of Violation of Proposition 65 with fourteen days to correct the violation and provide a sworn statement that the violation has been corrected.  A correction within 14 days and sworn statement by the alleged violator would then preclude the person who sent the 60-Day Notice from filing a Proposition 65 lawsuit against the alleged violator of the law.  AB 227 has now undergone a major revision to provide a 14-day correction period for the following three narrow categories of exposures to chemicals known to the State of California to cause cancer and reproductive harm:

• Exposures to alcoholic beverages, or to a chemical known to cause cancer or reproductive harm to the extent the chemical is formed on the alleged violator’s premises by necessary preparation of food or beverages which are sold on the alleged violator’s premises for immediate consumption;
• Exposures to environmental tobacco smoke caused by entry of persons (other than employees) on premises owned or operated by the alleged violator where smoking is permitted at any location on the premises;
• Exposures to chemicals known to cause cancer or reproductive harm in engine exhaust, to the extent the exposure occurs inside a facility owned or operated by the alleged violator and primarily intended for parking noncommercial vehicles.

The revision to AB 227 allows alleged violators protection from Proposition 65 suits if, in addition to correcting the alleged violation arising from one of the three categories of exposure described above, the alleged violator also pays a civil penalty in the amount of $500 per facility or premises, which amount will be adjusted annually to reflect any increases in the cost of living in California.

Individuals and businesses alleged to have violated Proposition 65 by exposing consumers to chemicals from sources other than the three listed above will not be immune from a Proposition 65 action even if they correct the alleged violation within 14 days of receiving a 60-day Notice.

AB 227 proceeds to the Assembly Committee on Appropriations.  In order for AB 227 to become law, it must be approved by a two-thirds vote in each house of the California Legislature, and then be signed by the Governor.

The Chanler Group represents citizen enforcers who, acting in the public interest, commence actions against businesses offering products for sale in California that contain chemicals known to cause cancer or reproductive harm without first providing the health hazard warning required by Proposition 65. Citizen enforcers bringing Proposition 65 actions in the public interest may obtain a Court Judgment imposing civil penalties, an injunction requiring reformulation of products, and/or provision of health hazard warnings. The Chanler Group has represented citizen enforcers of Proposition 65 for more than twenty years.