A variety of recent news articles suggest that Proposition 65 warnings are affecting consumer perceptions of product safety, particularly consumers who live outside of California and are unfamiliar with California’s “right to know” act.
A Minnesota grandfather was startled to find a Prop 65 cancer warning on his granddaughter’s tube of “slime” that she picked up as a prize at a local county fair. Since his discovery, he moved to start a “watchdog effort” to encourage more stringent regulation among the fair’s vendors. In Ohio, a school district returned a donation of backpacks loaded with school supplies after a Prop 65 warning was discovered on some of the items. The district explained that “safety is paramount” over “generosity and necessity.”
Even in California, where some residents have become numb to the sea of warnings, others experience confusion and even consternation when it comes to Prop 65 warnings. A townhouse in Treasure Island, which recently posted Prop 65 warnings on its façade, reportedly has left many residents worried.
Notably, a warning does not mean that a product or area is unsafe. The trigger for when a Proposition 65 warning is required is notoriously conservative, far below other regulatory programs that take the risk of actual harm to humans into account.
Prop 65 warnings are technically only required for exposures to listed chemicals above these conservative regulatory levels. Yet many companies provide warnings if listed chemicals are simply known to be present in the product. In part this is due to the language of the statute itself: warnings are required for exposures to a listed chemical unless the business can demonstrate that no warning is required. Put another way, the statute contemplates that a warning is permitted for exposures to a listed chemical below the regulatory threshold, but is required if the exposure is above that level. A business can shoulder this burden of proof, and make this determination, only by investing significant financial resources in retaining a toxicologist to undertake the evaluation. Even if the business makes that investment, and a toxicologist concludes that no warnings are required, the toxicologist’s conclusion does not guarantee a company will avoid expensive enforcement actions. Only a warning will immunize a company from a lawsuit.
With the aggressive enforcement climate that exists in California, where Proposition 65 private enforcers issue an average of three Notices of Violation every day of every year, it’s therefore not surprising that warnings are so prevalent. Furthering Prop 65’s reach, many companies also provide warnings on products whether or not they are bound for California, because it is impossible to know where products will ultimately land in the world of internet commerce. Unless definitive action is taken to curb frivolous lawsuits, either by legislative or regulatory action, we can expect continued warnings – and, possibly, escalating concerns about those warnings by consumers nationwide.
Grimaldi Law Offices has been advising clients for over 20 years on chemical and product regulation. For knowledgeable advice and in-depth analysis on your chemical regulatory compliance obligations, contact Grimaldi Law Offices at (415) 463-5186 or email us at [email protected].
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