How Did California’s Prop 65 Law Go So Wrong?

September 15, 2015
Category: Uncategorized

It was meant to inform and protect consumers. Instead it just makes shady lawyers rich off corporate blackmail. State-based Action Alert!
In 1986, California voters passed the Safe Drinking Water and Toxic Enforcement Act of 1986, generally referred to as Proposition 65, or “Prop 65.” A new white paper by ANH-USA shows how the original intent of Prop 65 has been steadily subverted by special interests.
The law stemmed from a growing concern that many chemicals may cause cancer, birth defects, or other reproductive harm. Under Prop 65, chemicals identified by the state as having even a one-in-100,000 chance of causing such harm may not be discharged into drinking water or onto land where they could contaminate sources of drinking water. In addition, manufacturers are required to post clear and reasonable warnings on any products, or in any locations, that could “knowingly and intentionally” expose consumers to any of these listed chemicals. The state is required to update the list of harmful chemicals annually. As of 2015, the list includes almost 900 items.
Properly drafted, this act might have done some good. Part of the bedrock of ANH-USA’s philosophy is informed choice, which means providing consumers with the information necessary to make educated decisions about the products they buy. This is the basis of our support for labeling foods containing GMOs, our opposition to state or federal vaccine mandates, our opposition to health monopolies, and a variety of other issues (see our recent article on recycled fracking fluid being used on crops without informing consumers).
California’s Prop 65, however, is a case study in unintended consequences. What was meant to be a public health initiative to inform consumers of potential hazards has been rendered meaningless by an industry of trial lawyers claiming to act in the public interest while they use the law to line their own pockets.
Our white paper, prepared for California lawmakers, provides more detail, but here’s the quick version of how this works.
Prop 65 sets up a system in which private parties, in addition to the attorney general and other entities, can bring a lawsuit against a company for failing to label their products in keeping with Prop 65’s guidelines. Rather than serving as a valid and useful enforcement mechanism, the private right of action has been exploited by “bounty hunters” seeking attorneys’ fees and settlements rather than improving public safety. Private parties are guaranteed 25% of any civil penalties resulting from the suit and are reimbursed for attorneys’ fees, creating a profit incentive for even meritless litigation.
And the financial incentives for filing suit against companies don’t stop there. Prop 65 settlements often establish payments in lieu of penalties in which private organizations designated by the plaintiff receive money that would otherwise have gone to the state. Because there is no state oversight, we believe law firms then use these payments to bring more lawsuits, force similar settlements, and continue the cycle, since they know full well that companies cannot afford the astronomical cost of prolonged litigation. In other words, it looks like a racket to us.
And there is a lot of money to be had. In 2013, Prop 65 settlements included over $12 million in attorneys’ fees alone. The law firms have gotten adept at milking this system to their benefit, working with the same few plaintiffs to bring dozens of Prop 65 cases. In fact, just two plaintiffs were involved in 83 of 187 settlements in 2010.
Why is this important? An herbal supplement company could, for instance, face a lawsuit for not labeling a folate product that contains naturally occurring lead just above the allowable limit established by Prop 65. These are not toxic levels of lead, mind you, but levels similar to those one might expect from eating a serving of spinach. Our bodies expect and are designed to remove these naturally occurring levels of lead or other heavy metals.
What does a warning label on these products accomplish? It isn’t keeping consumers safe—rather, it is discouraging them from taking supplements that help them. It also isn’t changing the practices of supplement companies, since the lead levels in the products are naturally occurring. The only way to avoid the lead is to create a synthetic supplement, and that is certainly not an improvement!
As it stands now, supplement companies making quality products are forced to put the same label on their products as a stain-removing laundry detergent containing large amounts of formaldehyde. Does this really help consumers?
As a result, many companies simply choose not to do business in California. Other companies that sell into California choose to label their products as a precautionary measure to avoid potential lawsuits, even when it is not warranted. This is all the more necessary because California does not, in many cases, even say what a toxic level is. The producer just has to guess at what might trigger a suit. This is crazy.
Prop 65 warning labels are now found everywhere—in restaurants, beaches, parking garages, and auto repair shops, as well as on marking pens, art supplies, faucets, gardening products, medical supplies, window treatments—and many more. The warnings are ubiquitous, rendering them meaningless to consumers.
Action Alert! If you are a resident of California, please contact your state legislators and urge them to amend Prop 65 to provide meaningful protections to consumers, rather than hand over settlement money to opportunistic trial lawyers. Please send your message immediately.
Read the full white paper here.
Take-Action

8 responses to “How Did California’s Prop 65 Law Go So Wrong?”

  1. Brenda Carey says:

    This is a grossly inaccurate article. It seems like it might have been written by a corporation that wants to be able to put products with as many harmful chemicals into the environment as possible. As someone who has worked in law offices that use Prop 65 to protect consumers, I have seen these lawsuits effectively get corporations to remove many toxic chemicals from their products, making the world a safer place. In fact, because of Prop 65, it is actually difficult to find products with lead in them, poisoning consumers. This was not the case before Prop 65, and these corporations were not going to remove lead from their products on their own. Readers should also be aware that the attorneys who protect consumers with Prop 65 are not rich. They barely make enough money to break even most of the time, but they keep practicing this type of law because they really care about protecting consumers. The settlement money these attorneys make is well earned. To take this away from them would be a travesty, and the corporations would be free to pollute our marketplace with impunity.

    • Don Groggin says:

      As a corporation trying to stay in business, I’d like to know how we’re supposed to know if any of the 900 listed chemicals are in any of our parts when we have 100 suppliers. It would be easy to know if there is lead in something, but how do I know if there is wood dust, aloe vera, aspirin, tobacco, terrazole, vinyl chloride, warfarin, salted fish, quazepam, nickel oxide, nitrogen mustard, or other things that would never cause cancer or reproductive conditions, but are on this list?
      I’ll just slap a label on everything I send to California. People don’t eat my products anyway. Or we’ll put a label on that says, “Cannot be sold in California because we can’t keep up with their legislation.”

    • OutWest01503 says:

      So now they put the labels on everything. And because they are on everything, no one pays attention to them. How does that help anyone?

    • Vercingetora says:

      The scientific study linked from the article examined whether cancer rates in California have fallen since the introduction of Proposition 65. It’s an impressive read loaded with objective data. It states that “the empirical strategy examined whether the state’s cancer rates changed when compared to other locations that did not adopt similar “right-to-know” laws. Little to no statistical support was found that Proposition 65 signicantly reduced cancer incidence in California.”

  2. If you couldn’t tell that California is being sabotaged from within, you are delusional.
    Just look at the states condition, not the lying politicians with the deceptively named “legislation”.
    While corrupt crooks and businessmen get rich off of destroying the state, they are lying to get the peoples support. Just like the petty crooks in D.C. do to the rest of the U.S.! Fracking wastes 70+ million gallons of water a year in Cali (plus poisons it) and is not only exempt from the water restrictions placed on the Californian slaves, it attempts to resell it back to its own populous’ farmers so they are eating and drinking the toxins, as well. Nestle is doing essentially the same thing, this is what privatizers and opportunists do. It is in their game book (look at what the world bank wants to do to africa). Monsanto has done it themselves! Dirty the local water, buy the water rights, clean it and sell it back to its people. Privatizing 101. Whatever legislation the petty criminals in the U.S. system pass is merely a deceptively named “feel good” bill that allows their corrupt business friends to game the system to their advantage and remove or reduce the rights of the individual and the collective as a whole. U.S. Legislation has only served to weaken and destroy the infrastructure and very fabric of society ever since we brought over the WW2 “scientists” (and even before WW2, around 1901 these goons were colluding) and their disgusting pharmaceutical monopoly on life itself.
    Once Russia comes you plebs better be very worried, for there will be no mercy for the likes of you. U.S. Citizens would rather be coddled as their corrupt system poisons them into health problems that are only intended to be profited off of, than stand up for themselves or the rights of life on this planet. You are all weak, pathetic, and divided. Just like the enemy wants and just as you have allowed them to do. When the time comes, I fight for what is right, and the U.S. is not right in any sense of the word.

  3. Rick, there is another reason not to be paranoid about lead from any particular source: it is now everywhere in our biosphere. Bone tests from people who died long before we started putting lead into gasoline show lead levels roughly 1% of those we have today. Removing lead from automotive gasoline (the only fuel affected) was a great idea, but that “residual” lead is in the soil, in our livestock, in our produce, and in our bio-fertilizers (both animal and plant origin). So realistically, everybody needs to follow a lead-mitigation protocol to be optimally healthy. And if you do follow such a protocol, your ability to tolerate lead in your work or home environment goes up dramatically.
    Let me add another twist. The entire cruciferous vegetable family are toxic metal accumulators, yet they are favored by people who fear toxic metal exposures from fish. Kale accumulates thallium, for example.
    Focussing on a single toxic as a reason for a general law dealing with toxics is inviting unintended consequences for us fellow citizens.

    • Rick "C-6" Delair says:

      Steven—-right you are, bud. There is much more than lead to worry about. these crappy awful LED lights being pushed down our throats have much nastier chemicals in the LED’s and the driver circuits than lead, and carry the RoHs tag, what a JOKE They are really miniature chemical waste dumps that light up. And on top of that they aren’t even very efficient! Go figure. Cheers!

  4. OutWest01503 says:

    …And if you are not a resident of California, tell them to clean up their stupid law so the sane people in the other 49 states don’t have to peel your stupid labels off all the products we buy.

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