Whether you are pumping gas or buying a fillet of salmon, your eyes have no doubt landed on an ominous sign documenting the presence of “chemicals known to the State of California to cause cancer and birth defects or other reproductive harm.”
Such alarming notices began appearing in the state in 1986 thanks to Proposition 65, otherwise known as the Safe Drinking Water and Toxic Enforcement Act of 1986, which prohibits businesses from discharging potentially harmful chemicals in drinking water and requires them to disclose the presence of such chemicals on their premises. The 19-page list of hundreds of potentially dangerous chemicals kept by the state is updated annually.
Today, the warnings are everywhere: parking lots, hardware stores, hospitals and just about any decent-sized business including, as of May, those of medical marijuana suppliers -- because marijuana smoke is now on the list of known carcinogens.
Supporters of Prop. 65 say the law has been key in ensuring accountability among manufacturers and retailers whose products contain chemicals that are potentially harmful. Although the law relies upon citizen enforcement -- anyone can bring a suit -- the California attorney general has taken the lead on significant cases. These include, most famously, a recent lawsuit against fast-food restaurants and food makers for the presence of acrylamide in French fries and potato chips. (The companies, which included KFC and Kettle Foods, settled last year, agreeing to reduce the presence of the chemical in their products or carry a warning label.)
But the law has been a boon not only to environmental and public health advocates but to plaintiff lawyers, who have reaped significant settlements over chemicals that have never been proved to cause significant harm at the levels in which they are present. In 2008, for instance, a total of 199 lawsuits were settled, netting $14.6 million in attorney fees and just $4.6 million in civil penalties.
The settlements must be made public, but critics say the system is often abused. They also contend that the omnipresence of Prop. 65 warnings has essentially rendered them meaningless and made consumers less likely to heed more significant health risks.
Read on for two opposing views on the issue.
Prop. 65 has been good for California’s health
James Wheaton is the president of the nonprofit Environmental Law Foundation, which has been a plaintiff in Prop. 65 lawsuits for 18 years, including ones on acrylamide in potato chips and lead in vinegar.
“Proposition 65 has been a very effective policy. It’s built on the precautionary principle: Let’s issue a warning well before you reach a threshold level that causes harm. We never felt that Proposition 65 was designed to tell people what to do, but we felt people should be informed and decide how they wanted to act.
“Quite honestly, I don’t think a lot of people are going to care about all the warnings -- it depends on the circumstances. If you see a warning on the back of paint thinner, you are not going to care. You already know it’s dangerous. But if you see a warning on a package of food for a kid, then you might care. The people who do care need to get the information so they can act in whatever way they feel is appropriate.
“The key thing is not that we are deciding, or the state is deciding, on what you should do. The only ones who step in and say ‘I’m going to make the decision for you’ are the companies who refuse to issue a warning. They are saying: ‘We don’t think you should have this information because you might respond to it in the wrong way.’
“Under federal laws, the federal government cannot take action to limit a chemical unless it has decided it is an affirmative hazard. Under most federal laws, industry doesn’t want to know the level because they don’t want regulation to happen. The chemical is innocent until proven guilty, and no action occurs.
“But under Prop. 65 the presumption of guilt is flipped. The company doesn’t have to provide a warning for lead in baby food if the level is so low that it is not a hazard, but the company must prove that. So today, more chemicals have been given recognized safe levels under Prop. 65 than under all federal laws combined.
“Finally, the most surprising thing about Proposition 65 is that there hasn’t been more of a proliferation of warnings. There have been a lot of changes made to products to avoid giving a warning, and that seems to be the law’s most pronounced effect. Companies will reformulate children’s products, they will reformulate food, they will reformulate Wite-Out [one of the first Prop. 65 cases], for goodness’ sake. If the law pushes companies to make their products safer, the public is the winner.”
Prop. 65 has made it harder for consumers to make reasonable choices
Lisa Halko is a defense lawyer with Greenberg Traurig in Sacramento and has written extensively on the problems she sees with Prop. 65.
“I don’t believe Proposition 65 has been good for California. It exaggerates a particular class of long-term theoretical risks related to cancer and reproductive health and makes it harder for people to make reasonable choices.
“For instance, there are very real and immediate risks from malnutrition, food spoilage and obesity from foods, but Prop. 65 creates alarm about trace amounts of chemicals that have no actual risk or have a risk that is obviously outweighed by the benefit of the food. Vegetables may contain a certain amount of lead if they grow in the ground, and fish contain mercury because they live in the sea. If we make trace chemicals the salient fact, then we discourage the consumption of healthy foods. Having so many warnings also undermines real warnings about real risks such as unpasteurized milk.
“How do we keep people informed? There are better ways to get that information to people than putting a warning on just one theoretical risk. The U.S. Food and Drug Administration has more complete, better targeted information on possible risks from fat and forms of cooking and possible contaminants, but also on benefits from a varied diet high in fresh fruits, vegetables, lean proteins and fish.
“I think it is wrong for the state to undermine national policies crafted by people who are experts in the field. The FDA has done years of research on food labeling and on what words are effective and how people process this information, and it has led to paradoxical results. For instance, if you qualify a statement with words like ‘may’ and ‘suggest,’ people are more likely to believe it is true. The FDA uses this and other information to maximize public health by providing information to people in a meaningful way.
“It should be a health and communication issue, not a legal issue. Why would we think that a bunch of lawyers, however well-meaning, know best how to communicate risks and benefits?
“Early on, there were some reformulations of products because of Prop. 65, but the problem is that the law allows anybody to bring a case by finding a listed chemical in a product even if it is present in an amount 1,000 times below the ‘no observable effect’ level. The defendant can prove the level is meaninglessly low -- but that is extremely expensive to do in court. Defendants end up settling with the plaintiff even when they are not liable, to avoid the expense of litigation.
“Changing a product does not necessarily make you free from litigation, so the settlement amounts are increasing. In 2007, the average settlement was $76,000 and in 2008, the average was $123,000. The incentive for companies to use labeling to avoid that is becoming stronger and stronger. If you walk into a store, hotel or parking garage today and look around, you will find more and more warnings. That undermines public health instead of promoting it.”