State Grants Temporary Exemptions to Toxics Law

The Deukmejian Administration issued emergency regulations Tuesday granting a temporary exemption for most foods, drugs and cosmetics from the warning requirements of Proposition 65, the anti-toxics initiative.

The emergency rules, released just 11 days before businesses must begin warning the public about exposure to toxic chemicals, also sanction a controversial toll-free telephone warning system planned by the food manufacturing industry and opposed by environmentalists.

The regulations, designed to help businesses and farmers comply with Proposition 65, spell out what kinds of consumer warnings would be acceptable under the law, including product labels and warning posters. In addition, the regulations establish the precise levels of many chemicals that would trigger Proposition 65 warning requirements.

Thomas E. Warriner, the Health and Welfare undersecretary who oversaw drafting of the regulations, said the rules represent a compromise between the desires of industry and environmentalists. “I don’t think we gave anybody what they truly wanted,” he said. “We gave people what we thought they needed.”

But backers of Proposition 65 immediately said they will file suit over what they consider to be two major loopholes in the regulations: the state’s acceptance of the toll-free hot-line warning system, rather than product labels, and the exemption of foods, drugs and cosmetics from the law.

“The regulations read like they were written by the chemical industry, and perhaps they were,” said Al Meyerhoff, an attorney with the Natural Resources Defense Council. “It’s part of an effort by industry and the governor to put roadblocks in front of this law.”

Under Proposition 65, which was overwhelmingly approved by voters in 1986, businesses must warn people before exposing them to chemicals known to cause cancer or birth defects.

The warning requirement takes effect Feb. 27 for the first 29 chemicals covered by the law, including such commonplace substances as benzene, asbestos and arsenic.

Businesses that do not comply with the law can face penalties of up to $2,500 per day for each exposure. Private citizens as well as prosecutors can file suit for violations and receive 25% of any fines that are assessed.

For the past year, industry groups have lobbied Gov. George Deukmejian for regulations that would soften the requirements of Proposition 65 and reduce the risk of huge penalties.

Now, less than two weeks before the warning requirements take effect, the emergency regulations provide the first comprehensive state guidelines for businesses seeking to comply with the law.

‘A Road Map’

“The positive thing is, we have a road map finally, for better or for worse,” said John Hunter, an attorney for a business coalition that calls itself the Environmental Working Group.

Hunter said the regulations are not entirely satisfactory to the business community, but added, “It looks like they walked right down the middle.”

The exemption for foods, drugs, cosmetics and medical devices is based on the theory that these products are already regulated by the federal Food and Drug Administration. Any of these products that meet federal guidelines would be considered in compliance with Proposition 65, under the regulations.

Environmentalists, however, point out that some cancer-causing chemicals covered by Proposition 65 are not regulated at all by the FDA. As a result, food products containing these chemicals could be sold without consumer warnings.

Detergents vs. Foods

Carl Pope, political director of the Sierra Club, said this could lead to a “bizarre” situation in which products like detergents and cleansers could be required to carry warnings while a food product that contained the same level of a hazardous chemical would be exempt.

“These regulations paint a bull’s-eye on the weakest federal standards and invite a legal challenge,” said David Roe, an attorney for the Environmental Defense Fund.

Under the regulations, the exemption for foods, cosmetics, drugs and medical devices will remain in effect until the state adopts specific standards for substances found in these products--a process that in some cases could take years.

The Deukmejian Administration had been under considerable pressure from the food manufacturing industry in recent weeks to approve the plan for a toll-free telephone warning system.

Under this proposal, shoppers would have to call in to find out which products contain chemicals known to cause cancer or birth defects. Consumers would have to request information by brand name only and the warning information would not be available in stores themselves.

The state stopped short of incorporating the hot-line proposal into the regulations but did say that such a warning system would be acceptable if it meets the initiative’s requirement that warnings must be “clear and reasonable.”

‘800-BALONEY’

Sponsors of Proposition 65, who argue that warning labels should be placed on the products themselves whenever possible, said manufacturers who rely on the toll-free number could very well face a costly legal challenge.

Labeling the hot-line proposal “800-BALONEY,” Roe said, “Only a tax lawyer would think this constitutes a clear and reasonable warning.”

The regulations also came under fire from the California Retailers Assn., which had hoped the state would clearly place the responsibility on manufacturers for providing warnings.

Roger Carrick, an attorney for the group, said the retailers are considering filing their own lawsuit against the state.