Opinion Columns & Blogs

Thirty years of California’s Prop. 65 scam, and it will get worse

Fresno State students make clear their position on Proposition 65 on Oct. 29, 1986. Voters approved the “Get Tough on Toxics” initiative, which critics today say quashes businesses and lines the pockets of predatory litigants – without meaningfully communicating chemical risk.
Fresno State students make clear their position on Proposition 65 on Oct. 29, 1986. Voters approved the “Get Tough on Toxics” initiative, which critics today say quashes businesses and lines the pockets of predatory litigants – without meaningfully communicating chemical risk. The Fresno Bee file

This month marks the 30th anniversary of Proposition 65, the notorious warning law responsible for California’s oft-seen cautionary labels and signs bearing an unsettling “WARNING: This product may contain chemicals known to the State of California to cause cancer and birth defects or other reproductive harm.”

But how did we reach the point where plastic toothbrushes, children’s toys, and the neighborhood Starbucks require the same type of warning as a pack of cigarettes?

In California, the years immediately prior to the 1986 election which ratified Proposition 65 were marred by highly publicized chemical accidents. Deformed waterfowl collected at the Kesterson National Wildlife Refuge. Farther south, communities were alarmed by rumblings of a 20-year coverup of a partial nuclear meltdown at the Rocketdyne-owned Santa Susana Field Laboratory.

Consequently, the toxics issue ranked among the greatest concerns during California’s 1986 election.

Proposition 65 was pushed largely as a measure to reign in industrial pollution of drinking water. The “Get Tough on Toxics Initiative,” as it was christened, was even summarized on the official ballots as a proposition to “prohibit discharge of toxics into drinking water and require warnings of toxic chemical exposure.” Who could disagree with that?

Unfortunately, as a citizen-originated ballot initiative, Proposition 65 was an exercise in unchecked legislation. The absence of meaningful review via legislative hearings or any opportunity to consider the interests of all affected parties left Californians with a law which today quashes businesses and lines the pockets of predatory litigants – all without meaningfully communicating chemical risk.

Contrary to the law’s intent that only known, not suspected, carcinogens would be regulated, the initiative was written in such a way that chemicals could land on Proposition 65’s blacklist without scientists ever demonstrating that they cause adverse health effects in humans. Even the American Cancer Society cautions “not every compound labeled as a possible cancer-causing substance has been proven to the worldwide scientific community to actually cause cancer.”

The bar is so low because the Office of Environmental Health Hazard Assessment which oversees Proposition 65 evaluates substances on the basis of hazard – can a substance in some massive, unrealistic quantity feasibly cause harm? A better standard would be to adopt a sensible evaluation of risk – does a substance in the course of human interaction cause harm? Thus, Proposition 65’s list has ballooned to include over 900 materials, most of which aren’t recognized by the Food and Drug Administration nor the Environmental Protection Agency as dangerous at everyday exposure levels.

As the list grows, more and more local businesses are affected – and not because they’re polluting California’s waterways.

Proposition 65 is enforced through litigation rather than government regulation. A “bounty hunter” provision permits predatory plaintiffs to scour the shelves for unlabeled products which could theoretically contain any one of the substances on Proposition 65’s list. With the law’s burden of proof so low, and the cost of laboratory testing and court hearings so high, most businesses elect to settle out of court when confronted with an accusation. Since 2000, California businesses have paid over $276 million in settlements with about two-thirds of that money going to attorneys – some of whom earn six-figure salaries filing Proposition 65 lawsuits alone.

As business owners become wary of the shakedowns, many elect to post warnings ubiquitously, even when their products may not be hazardous at all. The law intended to protect California’s citizens has become the real-world equivalent of email spam.

With 30 years of hindsight, action must be taken to protect local businesses while advancing the ability of Proposition 65 to communicate risk.

And in fact, Proposition 65 has been successfully amended twice in its history. After catching wind that the measure was used more as an income generator than a tool for societal and environmental protection, legislators approved a 14-day grace period for certain establishments, like bars and restaurants, to comply after accusations of “toxic exposure.” That’s a step in the right direction – it incentivizes compliance as intended under the law.

But for every step forward, California seems to take two steps back. Just this September, OEHHA adopted regulations making it easier to target local businesses with frivolous lawsuits.

Rather than continuing to post generic warnings intended to diminish liability, businesses must now name the suspected carcinogens and reproductive toxicants which could feasibly be present at some level in their products. Every business which thinks it is currently in compliance with Proposition 65 will no longer be covered come Aug. 30, 2018.

Although the basis for adding chemicals to Proposition 65 in the first place remains deeply flawed, local businesses have no choice but to humor the law’s boy-who-cried-wolf mandate until it can be amended to require a meaningful evaluation of risk.

Dr. Joseph Perrone is chief science officer at the Center for Accountability in Science.