State Curbs on Household Chemicals Under Attack : Hazards: Suspicion of government and industry led to Prop. 65 in 1986. Many now say the law goes too far.
The first target was typewriter correction fluid. Then came mothballs, room fresheners and pest strips, spot remover, spray-paint, shoe polish, hemorrhoid applications, crystal decanters and fine china.
One by one, seemingly innocuous contents of the medicine chest and kitchen cabinet were exposed as deadly carcinogens or reproductive toxins by Proposition 65, one of the country’s most ambitious experiments in environmental regulation. The 1986 voter initiative requires warnings if household products subject the public to even minute amounts of about 600 hazardous chemicals linked to cancer or birth defects.
Proposition 65 not only caused Californians to take a second look at many household staples, it also led a number of companies to pull products from store shelves and purge them of suspect ingredients. But now, as many environmental rules are under attack, the effectiveness of Proposition 65 and the science that underlies it are being challenged.
Thanks to the measure, consumers can buy Baccarat crystal and Tiffany’s best china that does not leach lead. They can buy a “new and improved” version of the Gillette Co.’s Liquid Paper that no longer contains the carcinogen trichloroethylene. They can buy Preparation H and some types of Sherwin-Williams spray-paint free of chemicals known to cause birth defects. In the case of those products and many others, moreover, name-brand competitors made similar changes in their wares.
And although Proposition 65 has no authority outside California, its influence has been far broader, since many of the reformulated products are sold nationwide. But Proposition 65 was passed in another era. It rode to victory on a wave of voter suspicion that neither government nor industry was leveling with people about any number of environmental hazards.
Today, elected officials from Sacramento to Washington are reflecting a different sort of skepticism, arguing, as Gov. Pete Wilson has recently, that many existing regulations have hamstrung society more than they have helped it.
Passed as a ballot measure, Proposition 65 cannot be repealed by politicians. But it can be changed legislatively, and there is considerable sentiment among legal and scientific experts that the law needs reform, that over the years certain hazards have been exaggerated and the public sometimes misled.
“Proposition 65 doesn’t give consumers a way to distinguish serious risks from trivial ones,” said John Dwyer, a professor of environmental law at UC Berkeley. “Everything is treated like the bogyman.
“And when people start seeing the proverbial skull and crossbones on too many of the things they use in their daily lives, they start disregarding the warnings, and then the whole purpose of the law is undermined.”
A case in point involves nail polish. A lawsuit invoking Proposition 65 in 1993 forced manufacturers of nail polish sold in California to warn customers that one of the chemical ingredients, toluene, causes birth defects. Rather than print warnings on the bottles, some manufacturers agreed to stop selling nail polish with toluene in California.
But not everyone was convinced that nail polish was a hazard to consumers. After studying the laboratory test data on toluene in nail polish, the California attorney general’s office, which has filed suits to enforce Proposition 65 under both Democrats and Republicans, had decided not to bring a case.
“We decided not to bring a lawsuit because we thought there was a very serious question whether exposure was high enough to require a warning,” said Ed Weil, the assistant attorney general in charge of Proposition 65 enforcement since the law was passed.
Last month, Consumers Union, an independent nonprofit organization that tests household products for safety and reliability, reported that “women who do their own nails once a week probably have little risk of ill effects from toluene exposure.”
To risk injury from nail polish exposure, said Consumers Union research scientist Joan Muratore, “one would have to lock oneself in a very tiny room and put the bottle under one’s nose for a very long time.”
The San Francisco law firm that filed the suit against the nail polish manufacturers did not have to prove that consumers would be hurt. The plaintiffs only had to show that exposure to toluene exceeded the legal limit--one of the toughest and most fought-over standards of its kind--set by Proposition 65 for reproductive toxins.
Typical of such cases, the plaintiffs commissioned a study that concluded that toluene exposure was illegally high, and the nail polish manufacturers produced a study that reached the opposite conclusion.
Facing the possibility of hefty fines in the event of an unfavorable court ruling, the manufacturers decided not to have a jury decide between the competing studies. Instead, they agreed to an out-of-court settlement that required them to include warnings or to reformulate their products and to pay the plaintiffs’ attorneys’ fees.
The same scenario has been played out a number of times in Proposition 65 cases, and the outcome is frequently controversial.
“The significance of the nail polish case and others like it is that the industry found it could do without chemicals that at some level are hazardous,” said David Roe, a lawyer with the nonprofit Environmental Defense Fund who helped write Proposition 65. “The nail polish case was useful in driving out an unnecessary toxin.”
But many affected industries see the law as a form of greenmail, and they object strongly to the law’s so-called bounty hunting provision that allows private plaintiffs to collect up to 25% of any judgments.
“It amounts to a legalized shakedown,” said Stanley Landfair, a Los Angeles lawyer who has represented several companies sued under Proposition 65. “Business is forced to pay a price for chemical contents that no one can prove are harmful.”
That bounty hunting provision also troubles Weil of the attorney general’s office, who says that some lawyers have exploited the law for personal gain.
“A couple of firms have latched on to (Proposition 65) in ways not calculated to help the public interest so much as to generate legal fees,” he said.
At the heart of the debate over the law are the standards used to determine whether products expose the public to a “significant risk” of cancer or birth defects.
Proposition 65 declares a risk to be significant if regular exposure over a lifetime will cause more than one new case of cancer among 100,000 people. (Imposing a more stringent test, the U.S. Environmental Protection Agency rates a cancer risk significant if exposure leads to one new cancer case among 1 million people.)
But a different calculus is used for chemicals linked to birth defects, as is toluene. A risk is rated significant and a warning must be given if exposure levels rise above one thousandth of the lowest dose proved to be harmful in laboratory tests.
“The thousandfold safety factor for reproductive toxins is easily one of the toughest safety standards in the world, if not the toughest,” said Roger Carrick, a Los Angeles attorney who has written a lawyers’ handbook on Proposition 65.
“My personal view is that (the thousandfold standard) is far too rigid, dealing as it does with chemicals that have a wide range of risk, some quite small, some not so small,” Carrick said.
The criticism of Proposition 65 is part of a nationwide debate over the role science plays in determining safe levels of exposure to toxic substances. Because most scientific testing of the dangers of various chemicals is performed on animals, there is an element of guesswork that often goes into establishing exposure limits for humans.
“When you go from rats or mice to humans, you are making a big leap,” said Michael Collins, an expert in developmental toxicology at the UCLA School of Public Health. “There are all kinds of confounding variables. As a result, those of us in public health have difficulty coming up with a number” designating the safe exposure level.
In the absence of scientific assurance, Collins said, “regulatory agencies tend to err on the side of caution. And California, under Proposition 65, tends to be one of the most cautious of states.”
Yet, as Congress prepares to re-examine the federal government’s expensive and laborious approach to assessing environmental hazards, champions of Proposition 65 argue that the California law offers a model of efficiency.
“The state may have set standards high--especially for reproductive toxins--but at least it has set them,” said Roe, of the Environmental Defense Fund.
Exposure limits have been established for more than 40% of the toxic chemicals on the Proposition 65 list. In other words, the state has determined exactly how much lead exposure--0.05 micrograms per day--is acceptable under the law and set numerical limits for more than 280 additional chemicals.
Meanwhile, the federal Environmental Protection Agency has established safe limits for barely two dozen toxic chemicals.
“Proposition 65 has resulted in a far more rapid assessment of carcinogens and reproductive toxics than has occurred under other state and federal legislation,” UC Berkeley environmental toxicologist William Pease wrote in a recent law journal article.
One reason California has moved more rapidly to set standards is because industry has put pressure on the state. Companies that deal with chemicals need to know how much toxic exposure is legal because under Proposition 65 they are uniquely vulnerable to legal challenges.
Traditionally, a person had to prove injury to win a lawsuit involving exposure to toxics. But under Proposition 65, anyone can sue on the public’s behalf. It is up to the business being sued to prove that it was not exposing people to hazardous levels of toxics without warning them of the dangers.
Critics refer to that aspect of the law as “the guilty until proven innocent provision,” and they say it places a costly burden on many industries.
“Proving that you are meeting a given exposure standard can be a tall order, indeed,” Landfair said. “Is the product used in a closed room or a well-ventilated space? What’s the size of the room and the air exchange capacity? Is the window open? What is the ability of the chemical to disperse in air?
“It can take years to litigate those issues. Time is money that the defendant may not have.”
But it is because of those uncertainties, the law’s proponents argue, that so many companies have decided either to issue warnings or to stop using hazardous chemicals.
Sued by the attorney general’s office, the state’s largest emitters of ethylene oxide, a sterilizing agent used in the food processing and medical equipment industries, stopped emitting the chemical rather than contest claims that exposure levels were too high.
As a result, statewide emissions of ETO--which has been linked to cancer and birth defects--were reduced by almost 90%, according to a study by Pease.
Moreover, said Pease, by 1990, three years after the law took effect, “85% of high-volume Proposition 65 chemicals (those released into the air in the greatest quantities) exhibited lower emissions.”
Pease concedes that the maximum exposure levels allowed under Proposition 65 for many chemicals are well below what it takes to harm people.
But that’s the point of the law, he said. “Proposition 65 doesn’t say, ‘Here is a line and if you cross it, you’ll be in danger.’ It doesn’t say that because with many chemicals we don’t know exactly where that line is.
“The intent of Proposition 65 was to establish a margin of safety that discourages any more than a trivial use of toxics,” Pease said. “And to a significant degree, the law has succeeded in doing just that.”
