Washington Readies a Toxic Bomb

California’s landmark Proposition 65, aimed at protecting the public from toxic substances, faces nullification if a measure now under consideration in Congress is enacted.

At the behest of powerful trade associations, Sen. James M. Jeffords (R-Vt.) has introduced legislation that would preempt the power of individual states to regulate--or even warn their citizens about--toxic chemicals found in over-the-counter drugs and cosmetics. Food, too, may be added to the list. Proposition 65, passed in 1986, and right-to-know laws like it would simply be voided--this by a Congress that has championed states’ rights and principles of federalism.

The preamble to Proposition 65 says that Californians needed to act because governments had “failed to protect us” from the hazards of toxic substances. The premise was simple: When exposed to a significant threat of cancer or reproductive harm, we had a right first to be warned first. We could then decide whether to buy a product, work in a factory or even breath polluted air without protest.

In its 10-year life, Proposition 65 has been widely applauded as an innovative and effective alternative to the often slow machinery of federal regulation. William Reilly, EPA administrator during the Bush Administration, said that “beyond simply informing people, Proposition 65 is intended to provide a compelling incentive for industry to remove nonessential carcinogens and reproductive toxins from its products.”

A key purpose of Proposition 65 was to fill gaps in federal laws where whole categories of toxic exposures are simply not addressed. Take cosmetics and over-the-counter drugs, routinely allowed on the market with no testing for the presence of toxic chemicals. According to the Cosmetic Handbook, a Food and Drug Administration publication for the cosmetics industry: “With the exception of color additives and a few prohibited ingredients, a cosmetic manufacturer may, on his own responsibility, use essentially any raw material as a cosmetic ingredient and market the product without approval.”

As a result of Proposition 65, California consumers now must be warned if an exposure to a chemical that causes cancer or birth defects is the price of vanity. They can then make an informed choice between brands and the market will do the rest. One example: As a result of legal action brought by environmentalists and the California attorney general, toluene, a potent reproductive toxin, has largely been removed from nail polish. A challenge is now being raised to the presence of lead in hair dyes. Other cosmetics are suspect.

Proposition 65 has also brought about the removal of lead from drinking water faucets, ceramic ware and crystal glasses and other toxins from a variety of home use products like cleaning solvents and mothballs. But perhaps the best example of the act’s effectiveness is the case of calcium supplements and antacids. Three years ago, the FDA concluded that the risks from lead in calcium products (as common as Tums and Rolaids) were far too high and presented especially serious risks to pregnant women and the unborn fetus. But while the agency issued a notice proposing a ruling, it did nothing more.

However, as a result of legal action brought by the California attorney general and the NRDC, agreements have now been reached with most calcium manufacturers, which have agreed to dramatically reduce the lead levels in their products.

California Sen. Dianne Feinstein has voiced opposition to the Jeffords provision and vowed to strike it when the FDA Modernization Act reaches the Senate floor this week or next. In a rare display of bipartisanship, California’s Republican attorney general, Dan Lungren, a likely candidate for governor in 1998, has also announced his opposition to the Jeffords measure. “Proposition 65 has been used successfully to reduce toxic contaminants in consumer products,” Lungren said. “The states should be permitted to continue in their historical role as guardians of the welfare of their citizens.”

Proposition 65 has served Californians well. Congress should leave it alone.