Legal Test Expected if Prop. 105 Passes: Does It Attempt Too Much?

The most important question about Proposition 105 on the Nov. 8 ballot is not whether it will pass or what it would accomplish, but is it legal?

This catch-all measure, called the “public’s right to know” initiative by its supporters, would require that consumers be provided with additional information about toxic household products, senior citizen health insurance plans, nursing home health and safety violations, supporters of state ballot initiatives and referendums, and California corporations that do business with South Africa.

The initiative is needed because “disclosure in all these areas has been the subject of legislation that has been killed” in recent years, said Jim Rogers, president of Consumers United for Reform, principal sponsor of the measure.

“The legislators were more interested in protecting campaign contributions than they were in protecting consumers,” Rogers said in a telephone interview from the organization’s Oakland headquarters.

But some observers believe that Rogers has included too many topics in his initiative and therefore will run afoul of the state constitutional requirement that statutes be confined to a single subject.

At a joint hearing of several state Assembly and Senate committees on Sept. 14, Deputy Legislative Counsel Michael Upson said, “We don’t think the provisions of 105 are functionally related or germane to one another,” a flaw that Upson said probably would lead courts to declare the measure unconstitutional.

But Rogers insisted: “We have a single subject--that subject is disclosure. . . . We are requiring commercial advertisers to provide more disclosure to consumers.”

Other sponsors of the initiative include Californians Against Waste, a recycling advocacy group, and the Congress of California Seniors.

“In general, we like the initiative,” said Mark Murray, legislative liaison for Californians Against Waste, which sponsored the successful 1986 bill to require bottle deposits. “It does cover a lot of ground, but we think just about anything that calls for more disclosure to the consumers is a good idea.”

But many of the state’s most active consumer groups have been silent about Proposition 105.

“I don’t think the proposition does much of anything that hasn’t already been done,” said Nettie Hogue, an attorney for Consumers Union, “but it probably won’t hurt anything.”

Rogers, an Oakland attorney, said Consumers United for Reform turned to the initiative process because “we just kept running up against a brick wall in the Legislature” for the last four years.

Rogers said he spent more than $300,000 of his own money, in donations and loans, for a petition campaign that gathered more than 370,000 valid signatures.

Under Proposition 105, businesses that advertise household toxic products such as paint, solvents and motor oil would be required to warn consumers that these substances should not be poured down the drain or thrown in the trash.

“There is a real problem in terms of folks not being aware of what’s in these products and how to handle them,” Murray said. “Even a commonly used product like Windex has chemicals in it that are not intended to be dumped down a drain or end up in a landfill.”

The Household Products Disposal Council, representing manufacturers of these products, contends that the initiative is unnecessary because “most consumers buy only the products they need and use them completely” and because “scientific evidence shows that disposal of household products has virtually no adverse impact on the environment,” according to a media mailing piece.

But a spokeswoman for the San Francisco public relations firm hired to represent the Household Products Disposal Council was unable to say what “scientific evidence” led to that conclusion.

‘Medigap’ Involved

When Assemblyman Bill Filanti (R-San Rafael) introduced a 1988 bill requiring that hazardous household substances be so labeled by manufacturers, “the industry came unglued,” said Laura Walker, an aide to Filanti.

Fiercely opposed by paint manufacturers and by the chemical and plastics industries, the bill passed the Assembly but was killed in the Senate, Walker said.

Also, Proposition 105 would require that health insurance policies to supplement Medicare--so-called “Medigap” policies--contain information about the extent of the coverage and a warning that some senior citizens have bought duplicate policies.

“The problem is really scandalous,” Rogers said. “Why, one Santa Rosa couple bought 20 different policies and was paying $13,000 a year in premiums.”

But Rogers was unable to name the Santa Rosa couple, and he could not provide any information about how to reach them.

Legislative staff members said many of the Medigap reforms sought by Proposition 105 already are included in a bill that passed the Legislature and was signed into law by Gov. George Deukmejian last month.

But Rogers replied, “What the Legislature gives, the Legislature can take away,” so the reforms would be more secure with the passage of 105.

The proposition also would require the state Department of Health to publish “a list of approximately 25% of the long-term health care facilities with the most serious records of violations” of state laws and regulations. It would also require that information about the state’s nursing home ombudsman program be widely advertised.

“I think it’s good,” said Lois McKnight, director of the nursing home ombudsman program in Contra Costa County and a sponsor of the initiative. “I think most (homes) would want to stay off that list.”

But Stacey Eachus, a spokeswoman for the California Assn. of Health Facilities, said the measure is not needed because California “already has one of the strictest (regulation) systems in the country.

“I’m not going to say all the facilities out there are providing excellent care,” Eachus said, “but I do think there’s something wrong with publishing a list of the worst offenders.”

Another part of the initiative would require that “major funding sources” for ballot initiatives and referendums be disclosed in all printed and broadcast advertising.

State law currently requires such disclosure if a single company, organization or individual is the principal financial backer, but 105 would require that the largest single contributor to an initiative or referendum campaign also be made known, along with corporate, union or out-of-state sponsorship, if it exceeds 50%.

The measure also would require that the identity of the sponsors be spoken in television ads, not simply flashed on the screen in small type.

“The TV ads are, to a large extent, where a lot of these proposition campaigns are won and lost,” Rogers said. “This lets people know who the biggest contributors to the campaigns are.”

But Darran Chesin, consultant to the Senate Elections Committee, said: “I’m not sure the state has any authority to require that anything be put in a radio or television commercial. I think the FCC has jurisdiction there.”

Chesin predicted a legal challenge to this part of Proposition 105, if it passes.

Finally, the initiative would require that corporations selling stock in California must disclose any business dealings with South Africa.

Rogers said legislation along these lines was introduced by Assemblywoman Maxine Waters (D- Los Angeles) but was killed in committee.

However, Sandra Simpson, an aide to Waters, said the assemblywoman has not introduced a South Africa disclosure bill for about two years and does not consider such measures to have a high legislative priority.

Although Proposition 105 could have an impact on a wide variety of businesses and other enterprises, opposition to the measure has been limited.

Opponents apparently have decided to hope that voters will reject the proposition and then, if they do not, to challenge its validity on grounds that more than a single subject is covered.

Constitution Cited

They base their hopes on Article 4, Section 9, of the state Constitution, which says, in part, “a statute shall embrace but one subject, which shall be expressed in its title. . . .”

But Rogers said, “The single subject is disclosure.” He said 105 is “much narrower than many other measures which have been upheld,” citing the 1982 “Crime Victims’ Bill of Rights” as one example.

But the state legislative counsel and others disagree.

“The biggest problem with this initiative is that it violates the single-subject requirement by attempting to lump together several unrelated subjects that are regulated by various state agencies,” said Eachus of the California Assn. of Health Facilities.

Proposition 105 TOXICS DISCLOSURE

WHAT PROPOSITION 105 WOULD DO Intention: Proposition 105 requires disclosure of consumer information about household toxic products, nursing homes, supplemental health insurance, statewide ballot measures and California corporations doing business with South Africa.

Main Sponsor: Consumers United for Reform

Other Supporters: Californians against Waste, Congress of California Seniors.

Opponents: Manufacturers and distributors of paints, solvents, motor oil and other household products; nursing homes; companies that sell supplemental health insurance; others.

Key provisions of Proposition 105

--Certain household products (paints, solvents, motor oil, others) must carry warnings that these hazardous wastes should not be poured down the drain or put in the trash.

--Supplemental health insurance policies must contain information about the extent of the coverage and the possibility of duplicate coverage.

--State Department of Health must compile a list of worst offenders among nursing homes.

--Major sponsors of ballot initiatives and referendums must be identified in all advertising.

--California corporations that do business with South Africa must file a disclosure statement with California secretary of state.