California Proposition 65 (1986)

Proposition 65 is a California law that has been in effect since 1986 to promote clean drinking water and keep toxic substances that cause cancer and birth defects out of consumer products. Proposition 65's formal title is "The Safe Drinking Water and Toxic Enforcement Act of 1986." It is administered by Cal/EPA's Office of Environmental Health Hazard Assessment (OEHHA). The law requires that anyone at reasonable risk of exposure be informed when substances classified as toxins are present. Since enactment, it has been the reason for the addition of notices of specific contents to consumer product labels. Along with the added label requirements, an official list of implicated substances is maintained and made publicly available. Entries are added or removed based on current scientific information. All substances listed show their known or suspected risk factors, a unique CAS chemical classification number, the date they were listed, and if so, whether they have been delisted.

Rationale and enumerated rights

In addition to amending the Health and Safety Code, Proposition 65 contained the following language in the 1986 ballot initiative:

"SECTION 1. The people of California find that hazardous chemicals pose a serious potential threat to their health and well-being, that state government agencies have failed to provide them with adequate protection, and that these failures have been serious enough to lead to investigations by federal agencies of the administration of California's toxic protection programs. The people therefore declare their rights:

(a) To protect themselves and the water they drink against chemicals that cause cancer, birth defects, or other reproductive harm.

(b) To be informed about exposures to chemicals that cause cancer, birth defects, or other reproductive harm.

(c) To secure strict enforcement of the laws controlling hazardous chemicals and deter actions that threaten public health and safety.

(d) To shift the cost of hazardous waste cleanups more onto offenders and less onto law-abiding citizens.

The people hereby enact the provisions of this initiative in furtherance of their rights." [Prop. 65 ballot pamphlet full text available at [http://traynor.uchastings.edu/library/Research%20Databases/CA%20Ballot%20Measures/ca_ballot_measures_main.htm Hastings' California Ballot Measures Databases] ]

The Legislature's 2003 amendments to Proposition 65 contained the statement that the changes "further the purposes of the Safe Drinking Water and Toxic Enforcement Act of 1986." [ [http://www.leginfo.ca.gov/pub/03-04/bill/asm/ab_1751-1800/ab_1756_bill_20030811_chaptered.pdf AB 1756 of 2003] ]

Enforcement

Enforcement is carried out through civil lawsuits against Proposition 65 violators. These lawsuits may be brought by the California Attorney General, any district attorney, or certain city attorneys (those in cities with a population exceeding 750,000). Lawsuits may also be brought by private parties "acting in the public interest", but only after providing notice of the alleged violation to the Attorney General, the appropriate district attorney and city attorney, and the business accused of the violation.

A Proposition 65 Notice of Violation must provide adequate information to allow the recipient to assess the nature of the alleged violation. A notice must comply with the information and procedural requirements specified in regulations. A private party may not pursue an enforcement action directly under Proposition 65 if one of the government officials noted above initiates an action within sixty days of the notice. After 2003, private enforcers must also serve a certificate of merit (statement of expert consultation(s) supporting belief of reasonable and meritorious private action) as a means of preventing frivolous enforcement actions.

A business found to be in violation of Proposition 65 is subject to civil penalties of up to $2,500 per day for each violation. In addition, the business may be ordered by a court of law to stop committing the violation. [ [http://www.calcleaners.com/drycleaners/prop65.html California Cleaners breaking news] ] Other penalties may apply, including unfair business practices violations as limited under California Proposition 64 (2004).

Warning label

The following warning label must appear on products sold in California if they contain chemicals on the Proposition 65 list of hazardous substances.

WARNING: This product contains chemicals known to the State of California to cause cancer and birth defects or other reproductive harm.

The wording can be changed as necessary, so long as it communicates that the chemical in question is known to the state to cause cancer, or birth defects or other reproductive harm. Common variations include "This area contains chemicals known to the State of California to cause cancer, or birth defects or other reproductive harm" or "Chemicals known to the State of California to cause cancer, or birth defects or other reproductive harm may be present in food or beverages sold or served here." [cite web
url = http://www.compliancesigns.com/ChemBioCAPROP65.shtml
title = CA Proposition 65 Signs
author = ComplianceSigns.com
accessdate = 2008-07-22
publisher = InfoTag, Inc.]

Some businesses in the state post similar notices on their premises, even when they are unaware of any listed chemicals being present.cite web
url=http://www.prop65news.com/pubs/brochure/madesimple.html
title=Prop 65 Made Simple
date=2005
publisher=Prop 65 News
quote=When a warning is given by a business, it means one of two things: (1) the business has evaluated the exposure and has concluded that it exceeds the no significant risk level; or (2) the business has chosen to provide a warning simply based on its knowledge about the presence of a listed chemical, without attempting to evaluate the exposure. In these cases, exposure could be below the Proposition 65 level of concern, or could even be zero.
accessdate=2008-07-22] Warning signs are often posted at gas stations, hardware suppliers, [cite web
url = http://www.watts.com/prop65.asp
title = California Proposition 65
author = Watts Water Technologies, Inc.] grocery stores, drug stores, medical facilities, and many other businesses. [cite web
url = http://www.kaweahdelta.org/guide/edevices.asp
title = Electronic Devices
author = Kaweah Delta Health Care District] cite press release
title = California Hotel & Lodging Association Helps Lodging Guests Understand Proposition 65; Court Approval Obtained for Comprehensive Compliance Procedure
publisher = California Hotel & Lodging Association
date = 2004-07-07
url = http://timesharebeat.com/2004/july/0707-04t.htm
accessdate = 2008-07-22
quote = "Unfortunately, the 'safe harbor' warning-sign language specified under Proposition 65 is designed to be so all-encompassing that it is vague and typically doesn't provide much useful information," said Jim Abrams, president and CEO of CH&LA. "People see Prop. 65 warning signs nearly every place they go -- grocery and hardware stores, restaurants, commercial buildings, car show rooms, hotels and inns, pretty much everywhere... ] Government agencies, [cite web
url = http://www.oehha.ca.gov/prop65/background/P65Facts.html
title = Comparison of the Warning Requirement and the Government Employee Disclosure Requirement
author = Office of Environmental Health Hazard Assessmen
publisher = California Environmental Protection Agency] parking garages, hotels, apartment complexes, [cite web
url = http://www.oehha.ca.gov/prop65/background/P65ten.html
title = Proposition 65 Fact Sheet for Tenants
author = Office of Environmental Health Hazard Assessmen
publisher = California Environmental Protection Agency] retail stores, [cite web
url = http://www.target.com/California-Proposition-65/b?ie=UTF8&node=1041180
title = California Proposition 65
author = Target.com] banks, and restaurants [cite web
url = http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2005/05/25/MNGD2CU9RA1.DTL&type=printable
title = Cancer label for foods is considered
first = Greg | last = Lucas
date = 2005-05-25
publisher = San Francisco Chronicle] also post warning signs because of the possibility of hazardous chemicals being present in everyday items or the nearby environment. Some large businesses, such as utility companies, mail a Prop 65 notice to all customers each year to warn them of dangerous substances like natural gascite web
url=http://www.pge.com/customer_service/bill_inserts/#proposition--publicwarning
title=July 2008 bill inserts
publisher=Pacific Gas and Electric Company
quote= Pacific Gas and Electric Company uses chemicals in its operations that are “known to the State of California” to cause cancer, birth defects or other reproductive harm. For example, Pacific Gas and Electric Company uses natural gas and petroleum products in its operations. Pacific Gas and Electric Company also delivers natural gas to its customers. Petroleum products, natural gas, and their combustion by-products contain chemicals “known to the State of California” to cause cancer, birth defects or other reproductive harm.
accessdate=2008-07-22] or the sand used in sandblasting. [ [http://www.pge.com/docs/pdfs/customer_service/bill_inserts/2004/200404_bus.pdf April 2004 bill insert from PG&E] ]

There is no penalty for posting an unnecessary warning sign.cite web
url=http://www.oehha.ca.gov/prop65/law/P65law72003.html
title=Proposition 65 Safe Drinking Water and Toxic Enforcement Act of 1986
date=1986
publisher=State of California
accessdate=2008-07-22] Because of the overuse of the vague warning, the ubiquitous signs ultimately communicate very little information to the end user.cite court
litigants = Consumer Defense Group v. Rental Housing Industry Members
vol = 40
reporter = Cal Rptr 3d
opinion = 832
court = Cal. Ct. App. 4th Dist. Div. 3
date = 2006-03-24
quote=Given the ease with which it was brought, and the absolute lack of any real public benefit from telling people that things like dried paint may be slowly emitting lead molecules or that parking lots are places where there might be auto exhaust, instead of $540,000, this legal work merited an award closer to a dollar ninety-eight.
url=http://ag.ca.gov/prop65/pdfs/G035101.pdf ] This problem has been recognized by California courts,cite court
litigants = Consumer Defense Group v. Rental Housing Industry Members
vol = 40
reporter = Cal Rptr 3d
opinion = 832
court = Cal. Ct. App. 4th Dist. Div. 3
date = 2006-03-24
quote=As the Attorney General pointed out in oral argument, it does not serve the public interest to have the almost the entirety of the state of California “swamped in a sea [of] generic warning signs.”
url=http://ag.ca.gov/prop65/pdfs/G035101.pdf ] cite web
url=http://www.law.com/jsp/article.jsp?id=1144672792347
title=Calif. Judge Blasts Firm in Toxic-Warnings Case
author=Pamela A. MacLean
date=2006-04-13
publisher=The National Law Journal
quote=
accessdate=2008-07-22] advocates,Written Testimony of Jeffrey B. Margulies. "Proposition 65’s Effect on Small Businesses." In the United States House of Representatives, Committee on Small Business. October 28, 1999. "Implications for consumers." While the intent of Prop 65 was to “inform” consumers, the impact of warnings under the Act has been a proliferation of meaningless warnings. Virtually every business has some sort of Prop 65 warning sign posted, and innumerable products are labeled with the warning. From gas stations to hotels, from grocery stores to hardware stores, consumers are deluged with warnings that they are being exposed to unnamed carcinogens and reproductive toxins. They are not told either the degree of exposure or the likelihood that they may actually be impacted by it. Moreover, because the risks to business of not providing a warning, many provide a warning even though they don’t actually know whether an exposure is occurring, or even if the exposure is trivial, further diluting the meaning of warnings to consumers.] [cite web
url=http://www.ehib.org/emf/pdf/AppendixD-EJ.PDF
title=Equity and Environmental Justice Considerations in Electromagnetic Field (EMF) Policy
authors=Indira Nair and Detlof von Winterfeldt
date=
quote=This is to be contrasted with Prop. 65 warning experience where the public received meaningless warnings filled with disclaimers, information that trivializes risk, and fails to put it into context.
accessdate=2008-07-22] and businesses.

Abuse of Proposition 65

The legislation is very controversial. Most of the Proposition 65 complaints are filed on behalf of straw man plaintiffs by private attorneys, some of whose businesses are built entirely on filing Proposition 65 lawsuits. [ [http://www.docstoc.com/docs/282270/Defending-the-Proposition-65-Bounty-Hunter-Case Defending the Proposition 65 Bounty Hunter Case ] ] cite web
url=http://www.forbes.com/forbes/2001/1015/080.html
title=Toxic Avengers - Forbes.com
author=Dorothy Pomerantz
date=2001-10-15
publisher=Forbes
accessdate=2008-07-22]

Labeling requirements conceded the reality that listing and classifying substances did not help the consumer if the contents of a purchase were unknown. At the same time, there were no other labeling requirements to support the proposition. Industry critics and corporate defense lawyers charge that Proposition 65 is "a clever and irritating mechanism used by litigious NGOs and others to publicly spank politically incorrect opponents ranging from the American gun industry to seafood retailers, etc." [ [http://www.fisheries.ifcnr.com/article.cfm?NewsID=495 NGO Strategies for 2004 and Beyond] ]

In addition, because the law allows private citizens to sue and collect damages from any business violating the law, there have been cases of lawyers and law firms using Proposition 65 to force monetary settlements out of California businesses. [ [http://ag.ca.gov/newsalerts/release.php?id=1207 Cal. Attorney General news alert, paragraph 10] ] The Attorney General's office has cited several instances of settlements where plaintiff attorneys received significant awards without providing for environmental benefit to the people of California, resulting in the requirement of the Attorney General's approval of pre-trial Proposition 65 settlements. [Chapter 3 - Settlement Guidelines, Cal. Attorney General's Proposition 65 regulations] The Attorney General also objected to efforts in settlements between private parties to pre-empt the Attorney General's right and duty to protect the public interest against future violations.

See also

* California ballot proposition
* Environmentalism
* Toxicity
* Pollution

References

External links

* [http://www.oehha.ca.gov/prop65.html Official Proposition 65 website]
* [http://www.oehha.ca.gov/prop65/prop65_list/Newlist.html Official Proposition 65 list of substances]
* [http://www.oehha.ca.gov/prop65/whats_new/index.html Proposition 65 updates]
* [http://ag.ca.gov/prop65/regs.php California Attorney General - Proposition 65 regulations]
* [http://www.forbes.com/forbes/2001/1015/080.html Forbes.com -Toxic Avengers, Morse Mehrban gets rich from Proposition 65]