Quiet Legacy of Once-Hated Proposition 65

Since Proposition 65 became law in 1987, Hughes Aircraft Co. has spent $3 million to find out if it was emitting toxic chemicals in violation of the controversial voter initiative. As it turns out, Hughes was already basically in compliance, so all that money did little to advance public safety.

Now let’s assume that the Hughes money was available for saving lives some other way. For instance, $3 million is enough to screen perhaps 50,000 poor women at mobile mammography vans. The odds are, says Dr. Richard H. Gold, a UCLA radiology professor, that 550 cases of breast cancer would be discovered.

Does that make Proposition 65 a mistake? In an ideal world it might, but--surprise--California is not such a place, so the question is more complicated.

You remember Proposition 65. Exempting the smallest firms, it requires California businesses to give warning if they expose anyone to “significant” amounts of chemicals that cause cancer or reproductive harm. It also bars such chemicals from being discharged into drinking water.

Back in 1986, when it was on the ballot, Proposition 65 was described by many opponents in catastrophic terms. Lawsuits and vigilantism would sprout like crabgrass, it was said, and millions of safe items would carry ominous warnings.

Well, the law’s been in effect for five years now, long enough to begin to assess whether it’s all been worth it. Theoretically, this is just a matter of toting up the costs, setting them against the benefits, and seeing which side of the ledger has a larger balance.

Unfortunately, the calculus of risk isn’t so clear-cut because most of the costs and benefits are invisible. We not only bought a pig in a poke; we can’t even tell what we paid for it. Even so, a few important things about Proposition 65 have become evident.

First and foremost, the sky didn’t fall. Almost none of the dire predictions used to fight the measure have come to pass in its wake.

For example, because Proposition 65 allows anyone to bring a civil enforcement suit, the specter of endless litigation was raised. But in five years, says Ed Weil, the deputy state attorney general in charge of enforcing the law, only a handful of such suits have been filed.

The California Farm Bureau, a trade group, predicted serious trouble, asserting that safe fertilizers and pesticides would be banned for most growers and “farmers may even have to stop irrigating.”

The Farm Bureau now says the measure hasn’t been much trouble at all, thanks to sensible implementation. And yes, the farmers are still irrigating.

Proposition 65 would drive some companies out of business, it was said. But leading opponents of the measure can’t or won’t name any real horror stories.

Maybe the experience of Southern California Edison is more typical. Says its environmental affairs supervisor, Robert Reid: “There’s been a lot of effort through the years, but the overall impact in terms of cost has basically been small.”

Hundreds of pages of commerce-hobbling regulations didn’t materialize either. As it turns out, Proposition 65 may be a bonanza less for lawyers than for sign painters and label printers. Largely useless warnings of toxicity within now appear on some office buildings, hotels, pharmacies and gas stations, no doubt contributing to public cynicism about risk.

Proposition 65 has also done some good. Gillette Co. removed trichloroethylene from its Liquid Paper Correction Fluid. California wine makers are eliminating lead foil wrappers. And the use of ethylene oxide as an industrial sterilizer has been sharply curtailed. About 800,000 pounds of this toxic gas were being emitted annually in California before some Proposition 65 suits.

But most of the good arising from Proposition 65 remains hidden, in the form of companies that quietly assess what they’re doing and, presumably, clean up their act to avoid the brouhaha that might arise from having to tell all the neighbors they’re being poisoned.

That’s OK, unless companies that aren’t poisoning the neighbors are spending a lot on Proposition 65 compliance unnecessarily. Similarly, Proposition 65 would be bad if it caused, say, $1 billion to be spent saving a single life when the same amount could save hundreds by other means.

Hughes Aircraft, for example, was using 52 of the hundreds of chemicals listed under Proposition 65, says Patrick O’Brien, manager of environmental compliance, and spent $3 million to learn that it was emitting nothing that came close to the stringent legislation limits except for a single marginal case, which was eliminated by a change in procedures.

H. W. Lewis, professor emeritus at UC Santa Barbara and a student of public attitudes about risk, says people and policy-makers don’t do a very good job of identifying and attacking risks that might affordably be reduced.

The truth is, deaths from environmental toxins pale in comparison to the number slain by fatty food, smoking, auto accidents, AIDS and alcohol abuse.

Many of these deaths can be cheaply prevented. Cigarettes, for example, are implicated in perhaps 40,000 California fatalities every year . Increased spending for anti-smoking education and punitive cigarette taxes might save money as well as lives, given the cost of health care for smokers.

Does that make Proposition 65 a mistake? Hardly. Money spent on compliance probably does some good, and probably wouldn’t be available for anti-smoking efforts or driver education. And just try placing heavy taxes on cholesterol-laden foods.

To assess Proposition 65 and how it might better be implemented, the California Environmental Protection Agency has convened a special review panel. It also sent questionnaires to businesses in an attempt to measure the costs involved.

There are no findings yet, but the early signs are good. Says Charles M. Shulock, Cal-EPA assistant secretary in charge of the review: “My sense is, people feel the thing is working.”

My apologies to political consultant Robert Kaplan. In a recent column I said he’d signed no clients this year. In fact, he has several.