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Chemical Exposure
Landmark toxics law celebrates 25 years (#2013)
2011-07-27
California’s Proposition 65 is best known for requiring warning labels about the potential for cancer or birth defects from using various products or entering certain buildings.
But what continues to make the law effective 25 years after its passage is that companies still are creating products designed to avoid the negative publicity and consumer wariness that goes along with a Prop. 65 tag.
The list of altered items runs from correction fluid and nail polish to jewelry and vitamins.
By one count, more than 12,000 kinds of consumer products have been reformulated directly because of Prop.
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65 warnings — and an unknown number of others have been changed before they entered the legal process.
“The whole idea was for companies to do what they needed to do so they don’t have to warn,” said Bay Area attorney David Roe, lead author of the initiative that voters passed with 63 percent approval in 1986.
“It’s the nine-tenths of the iceberg below the surface that is really important.”
When the law was crafted, Roe worked for the Environmental Defense Fund and opinion polls showed that fears about toxins weighed heavily on Californians despite a litany of laws to control them.
Roe and his colleagues slipped one past the business lobby and then made it stick despite several efforts to get the state rules preempted by federal laws.
Many in industry still see it as a meddlesome regulation that has jacked up costs, spawned frivolous lawsuits and created a cottage industry of bounty hunters.
More broadly, there’s agreement that Prop. 65 has been helped create a less toxic world even though warning labels have popped up by the thousands and resulted in a certain amount of “hazard fatigue” in the public.
A key element of the law was shifting the burden related to an ever-growing list of toxins to companies that must show their products are safe or warn customers.
It put California at the forefront of an international movement to limit human exposure to dangerous chemicals and compounds.
The list now includes more than 840 substances “known to the state of California” to cause cancer or reproductive harm, up from 30 in 1987.
Even though the law hasn’t been duplicated elsewhere, it is altering business practices around the globe.
“Prop. 65 tends to be the frontier where chemical exposures are tried and judged, and fairly or unfairly hanged at noon if they are found wanting,” said Los Angeles lawyer Roger Carrick, who publishes a trade newsletter about Prop. 65.
The law’s sweeping influence comes from California’s position as one of the world’s largest economies. No company wants to get caught producing a nontoxic product for California and one that includes toxins for other markets.
That means international firms are forcing suppliers to prove Prop. 65 compliance so they don’t have to worry about getting blacklisted here or elsewhere.
“Prop. 65 standards are slowly but surely permeating the health standards of Chinese villages with manufacturing facilities,” Carrick said.
His analysis in 2010 showed that more 2,100 lawsuits have been filed under Prop. 65 and nearly 70 percent had been settled, typically through court-approved judgments between companies and “citizen enforcers.”
Defendants had paid out more than $258 million in various settlements, about two-thirds of which went to the plaintiffs.
In addition, Carrick estimated that more than $1.24 billion has been spent to reformulate products under Prop. 65 settlements.
Oakland-based Center for Environmental Health has been one of the most prolific users of Prop. 65, settling dozens of cases in recent years.
Its focus is on getting lead out of children’s products such as diaper rash medications, candy and lunchboxes.
In 2008, it even leveraged the state law to help win passage of the federal Consumer Product Safety Improvement Act, designed to establish safety standards for children’s products.
Center director Michael Green said Prop. 65 remains relevant because the list of toxins keeps expanding and ingredients continue to come from countries with lax safety rules.
“As companies make business decisions, they are incentivized to consider, ‘Will this decision make anybody in California sick?’ ” Green said. “It uses market mechanisms in a way that is good for society.”
Some people are concerned that warning labels are so common that they aren’t effective in helping residents differentiate between acute risks and those that would only result from a lifetime of exposure.
“It’s kind of like the boy who cried wolf,” Mission Valley attorney Jeff Caufield at Caufield & James said. “If everywhere you go, you see these signs saying ‘cancer, cancer, cancer,’ you don’t know when to be concerned.”
Despite his skepticism, Caufield said Prop. 65 has had one clear impact.
“It certainly has made the public much more aware that we are exposed to carcinogens every day in basically all facets of our life."
Editor's note: This article has been edited for length.
California’s Proposition 65 is best known for requiring warning labels about the potential for cancer or birth defects from using various products or entering certain buildings.
