Prop 65 Coming to New York ....?

Newly proposed legislation in New York, announced by Gov. Andrew Cuomo during the release of his Executive Budget late last month, would look an awful lot like California's "Proposition 65" program ... but, presumably, with crucial differences. As described by the Governor's office, under the "Consumer Right to Know Act":

[A]gencies will assess the feasibility of on-package labeling and develop regulations establishing a labeling requirement for designated products, developing a list of more than 1,000 carcinogens and other chemicals that will trigger labeling and identifying the types of consumer products that will be subject to the new regime.

Sound familiar?

The Governor's press release, the full text of which is available here, also noted that the Department of Environmental Conservation would administer the law, in consultation with the Department of Health and the Department of State.

While few details have been released outside of this announcement, and no actual legislative text has been issued, the parallels to California's consumer product warning requirements are obvious. In fact, it would be surprising if New York, assuming the law is adopted, did not default to the California Office of Environmental Health Hazard Assessment's existing Proposition 65 list of carcinogens and reproductive toxins as the basis for the program. The same may be true for the text of any required warnings as well, if for no reason other than to ease compliance given that many products already bear the California-required warnings, as well as the potential for consumer confusion from potentially multiple warning statements.

The differences with Prop 65, however, are critical. First and foremost, there has been no mention of any role for private plaintiff enforcement of the New York law. Second, the determination of which products require a warning apparently will be accomplished through a state agency regulatory process, rather than left to individual companies. These two factors -- private plaintiff enforcement combined with placing the burden of proof on the business to justify not providing a warning -- combined in California to spawn a host of questionable "bounty hunter" suits and an absurd proliferation of warnings that litter the Golden State and do little to advance public health.

It will be fascinating, if the proposal advances, to see what, if any, lessons New York has learned from the California Prop 65 experience and how the state handles a number of critical issues, such as:

• Which products will be subject to warning requirements ... all consumer products? or just certain ones?

• What level of exposure or risk will trigger the need for a warning?

• The list of "potentially hazardous chemicals" that the press release alludes to is practically infinitely long, as almost any substance is "potentially hazardous" at a sufficient dose. Will New York address substances other than carcinogens and reproductive toxins?

• How will the law be enforced and by whom? What will the penalties be for non-compliance?