A proposed bill out of the Utah Legislature this week marks an unexpected turn in the expansion of legislation mimicking California’s Proposition 65.  Where Prop. 65 requires a “clear and reasonable” warning regarding exposures to toxic substances, Utah’s House Bill 243 would require a prescribed “clear and reasonable” warning on pornographic materials that Utah considers to be harmful to minors.

If that warning looks familiar to those accustomed to seeing the increasingly ubiquitous Prop. 65 warnings, HB 243 also deliberately borrows from the regulation-by-litigation enforcement framework underpinning California’s Prop. 65.  As with Prop. 65, Utah’s HB 243 proposes to:

• Allow for enforcement actions to be brought by the state or by private citizens;
• Provide for a penalty of up to $2,500 per violation which can adjusted based on various factors (e.g., “(a) the nature and extent of the violation; (b) the number and severity of the violations; (c) the economic effect of the penalty on the violator . . .”);
• Provide for a 60-day notice period for enforcement actions; and
• Allow for recovery of filing fees and attorney fees.

If passed, the effects of this bill would likely be seen well beyond Utah’s borders just as Prop. 65 warnings are often seen around the country and beyond.

Businesses facing California’s Prop. 65 will often make the decision to include the Prop. 65 warning on all of their packaging, even if some (or most) of their product is going destinations out of state.  It can be simply too expensive, logistically difficult, and risky to have separate Prop. 65-specific packaging and then attempt to police downstream distributors to make sure no product goes to California with the wrong packaging.  HB 243’s warnings would likely spill outside of Utah for same reasons.  This is probably no accident.

There are many First Amendment issues with the proposed bill and it will be interesting to watch this HB 243’s progress through the Utah Legislature.

CMBG3 Law has represented clients in matters with warning label issues for many years. Our attorneys in California are well-versed on Prop 65 issues and requirements. Proposition 65 does not lend itself to a one-size-fits-all approach. If you believe that you fall under the regulations of Proposition 65, we recommend seeking legal advice to address your individual situation as the information at this site is not, nor is it intended to be, legal advice. While we invite you to contact us, and welcome you to do so, contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until an attorney-client relationship has been established. If you have any questions or would like more information, please contact Gilliam Stewart (email him or 415-957-2322).

Authored By:

Gilliam Stewart, Esq.