Over 30 years ago, California voters passed the Safe Drinking Water and Toxic Enforcement Act (Prop 65) as a chemical right-to-know initiative designed to provide warnings for consumer products that cause exposures to listed chemicals that are known to cause cancer or reproductive harm. Today there are over 900 chemicals on the Prop 65 list and more substances are added annually. Prop 65 imposes burdensome obligations on businesses in California and over the years, critics have questioned how much the legislation has actually helped consumers. Moreover, the amended regulations set to take effect in less than two months will impose even more stringent requirements on California businesses, potentially expanding the nature of Prop 65 enforcement actions and raising concerns about the law’s value going forward.
The Goals and Positive Effects of Prop 65
Supporters of Prop 65 maintain that the legislation has had some clear benefits for consumers. Businesses are forced to be accountable for the products they put into the marketplace and the public is more aware of chemical exposure risks. Some manufacturers have even revamped the contents of their products to reduce or eliminate exposure to listed chemicals. Consumer advocacy groups emphasize the efficacy of the legislation in altering the behavior of companies who may expose consumers to these chemicals. This includes removing lead from tableware and jewelry and eliminating 4-methylimidazole from soda. Prop 65 is believed to be the impetus for many of these changes and may be a useful tool for consumers in making knowledgeable choices.
Criticism of the Legislation
Despite the potential payoff of the legislation, there is widespread belief that Prop 65 should be reformed. For starters, many critics complain that the warnings do not actually provide useful information. For example, the warnings do not supply context that informs consumers what the chemical does, the actual consequences of exposure to that chemical, or other factors affecting the overall potential health harms that can result from such exposures. The recent court ruling in Council for Education and Research on Toxics v. Starbucks Corp., et al. (Los Angeles County Superior Court Case No. BC435759) is a perfect example of this problem: the court ruled that cancer warnings are required for acrylamide in coffee, when numerous studies show that coffee – a complex mixture of substances – overall reduces cancer risk. Cancer warnings for coffee therefore would not provide accurate information about a coffee drinker’s risk of cancer. Ironically, the California Office of Health Hazard Assessment now is proposing a new regulation clarifying that cancer warnings are not required for coffee.
Second, Prop 65 was never intended to be used as a green chemistry-type of law. Although Prop 65 incentivizes businesses to replace listed chemicals with unlisted chemicals in their products, the law does not require a safety evaluation of replacement chemicals. Thus, Prop 65’s purported benefit of getting “bad” chemicals out of products may be illusory, as replacement chemicals with unknown (or worse) safety profiles are used.
Third, determining when a warning is required can be exceedingly difficult and expensive. Worse, making that determination as part of a pre-litigation compliance effort does not immunize a business from an enforcement action. Businesses therefore may opt to put warnings on all their products to guard against legal challenges. This leads to the problem of so-called “over warning”, which dilutes the potency and reliability of the warnings in the first place. The excessive use of warnings also underscores a major criticism of Prop 65 – that it is an inadequate attempt to balance the costs of mandating warnings with the benefits provided by these warnings as they are prescribed under the legislation.
Finally, one of the most serious objections to Prop 65 is that it has led to the proliferation of frivolous lawsuits by private plaintiffs. Any individual who discovers that a product contains a listed chemical in any quantity regardless of the actual effects of that chemical (again, think acrylamide in coffee…) can initiate a lawsuit. This has led to a windfall for plaintiff law firms handling Prop 65 litigation: the Attorney General estimates that more than 70% of revenue generated by court settlements in Prop 65 litigation are retained by law firms. Prop 65 may become less valuable as a tool for consumers to make informed choices as it is increasingly utilized by private enforcers for financial profit.
Grimaldi Law Offices has been advising clients for over 20 years on chemical and product law. For knowledgeable advice and in-depth analysis on your Prop 65 compliance obligations, contact Grimaldi Law Offices at (415) 463-5186 or email us at [email protected].
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