California's Prop 65: Bad For Public Acceptance Of Science, About To Get Worse

By Gil Ross — Feb 05, 2016
California's law was ostensibly crafted to warn the public about potentially toxic substances in products. It has become a tool for predatory lawyers to sue companies for no valid reason and it's about to get worse.

Prop65 PictogramThe Safe Drinking Water and Toxic Enforcement Act (Proposition 65 or Prop 65, passed overwhelmingly by plebiscite in 1986) requires the governor of California to publish a list of chemicals "known to the State to cause cancer or reproductive toxicity."

The law mandates (among other things) that no person may knowingly expose any individual to a significant amount of a listed chemical without first providing a "clear and reasonable warning" to such individual.

The problem: the law makes no mention of level of exposure, which means that it doesn't really indicate the level of risk, or indeed if any health risk actually is present from some trace amount of some allegedly toxic chemical.

It is the epitome of the precautionary principle: better safe than sorry, or if you can't prove something is safe, get rid of it.

The California agency that oversees the Prop 65 warning label law, in a putative attempt to improve it a truly thankless and impossible task, short of its revocation is about to finalize a rule that will establish a Lead Agency Website (LEW) whose publicized goal is to provide additional information to consumers on exposure to listed chemicals.

The new requirements impose reporting requirements on industry in the event that the agency the Office of Health Hazard Assessment requests information. Specifically, within 90 days of a request from OEHHA, the manufacturer, producer, distributor, or importer of a product bearing a Proposition 65 warning must provide, for publication on the LEW, information such as: the location of the chemical in the product, the concentration (including mean, minimum, and mode) of the listed chemical in the final product, anticipated routes of exposure, estimated levels of exposure, and any other related information concerning exposures to listed chemicals."

The LEW will identify the listed chemicals present in a product, publish concentrations in products, and provide exposure estimates. (In an apparent show of exercising some common sense regarding this nonsensical regulation, the OEHHA has kindly allowed that if the information they demand is not actually possessed by or in the control of the business solicited, then that business is not required to procure it.)

Various businesses and industry groups submitted comments highlighting concerns regarding disclosure of information considered to be trade secret or privileged, as well as disputing the accuracy of information posted on the website by third parties.

The final regulation includes some modifications made in response to comments submitted by businesses and trade associations last September, concerning (1) the method by which OEHHA will evaluate trade secret information, (2) the inability of OEHHA to obtain privileged information from companies, and (3) the ability of companies to request the correction of inaccurate information that may appear on the website.

The most counterproductive of the new regulations are these:

A they allow companies to select one Prop 65 chemical (meaning a toxicant or carcinogen according the precautionary principle which forms the backbone of this law) and list it for a product. Note: this is far superior indeed to a prior proposal under which all the ostensibly toxic substances would have had to be listed, giving consumers a pharmaceutical-type of possible side effects length listing to pore over before purchasing, say, wood or white-out in a market. But seriously: one selected chemical to be listed would supply what type of information to improve consumer choice or public health? Do not laugh.

B The marketer/supplier would be prohibited from communicating truthful context-based information about the actual/absolute level of risk in their product, a clear violation of First Amendment principles regarding compelled commercial speech (or silence, in this case). Not to mention, again, the lack of helping consumers or public health (OK, laugh if you must).

C A required pictogram with an exclamation point in a yellow triangle connotes danger where none, or almost none, exists and is a needlessly redundant extra warning to the Prop 65 warning labels.

We have addressed Prop 65 numerous times here at ACSH, including a thorough dissection of its anti-public-health aspects. In fact, I could go on, and on, about the nefarious, illogical, counterproductive aspects of Prop 65, but nothing is going to change for the better in California, as long as the law supports a cottage industry of predatory plaintiff s lawyers who are empowered to sue companies for any failure to comply with the law s byzantine strictures. After all, who writes the laws there?