California Proposition 65

California Proposition 65 (1986)
Proposition 65 (formally titled "The Safe Drinking Water and Toxic Enforcement Act of 1986") is a California law passed by direct voter initiative in 1986 by a 63%-37% margin. Its goals are to protect drinking water sources from toxic substances that cause cancer and birth defects and to reduce or eliminate exposures to those chemicals generally, for example in consumer products, by requiring warnings in advance of those exposures. It is administered by Cal/EPA's California Office of Environmental Health Hazard Assessment(OEHHA), which maintains a helpful website[1] on the law. Proposition 65 regulates substances officially listed by California as causing cancer or birth defects or other reproductive harm in two ways. The first regulatory arm of Proposition 65 prohibits businesses from knowingly discharging listed substances into drinking water sources, or onto land where the substances can pass into drinking water sources. The second regulatory arm of Proposition 65 prohibits businesses from knowingly exposing individuals to listed substances without providing a clear and reasonable warning.
Since enactment, Proposition 65 has been the reason for reformulation of numerous consumer products to eliminate toxic chemicals covered by Proposition 65, as well as other significant changes to reduce exposures such as toxic air emissions[2]. In some cases consumer products have been relabeled to show specific toxic ingredients, but reformulation has been far more common. An official list of covered substances is maintained and made publicly available. Entries are added or removed based on current scientific information. All substances listed show their known risk factors, a unique CAS chemical classification number, the date they were listed, and, if so, whether they have been delisted.
Proposition 65 remained politically controversial [3] for well over a decade after it passed, in large part because, in effect, it put the burden of proof on business instead of government to make a key scientific determination about safety levels for specific chemicals. [4]This unique shift gave businesses an incentive to cooperate with government in setting exposure limits to specific chemicals. When the California Environmental Protection Agency conducted a five-year review of the law in 1992, it found that "By federal standards, Proposition 65 has resulted in 100 years of progress in the areas of hazard identification, risk assessment, and exposure assessment." [5]
[edit] Rationale and enumerated rights
In addition to amending the California 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."[6]
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."[7]
[edit] 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.
[8] Other penalties may apply, including unfair business practices violations as limited under California Proposition 64 (2004).
[edit] Warning label
The following warning language is standard on products sold in California if they contain chemicals on the Proposition 65 list and the amount of exposure caused by the product is not within defined safety limits.
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. For exposures from other sources, such as car exhaust in a parking garage, a standard sign might read: "This area contains chemicals known to the State of California to cause cancer, or birth defects or other reproductive harm" .[9]
Some businesses in the state post similar notices on their premises, even when they have not evaluated the actual level of risk from a listed chemical they know is present. [10] Warning signs are often posted at gas
stations,[11] hardware suppliers,[12] grocery stores, drug stores, medical facilities, and many other businesses.[13][14] Government agencies,[15] parking garages, hotels,[14]apartment complexes,[16]retail stores,[17]banks, and restaurants[18] 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 gas[19] or the sand used in sandblasting.[20]
There is no penalty for posting an unnecessary warning sign.[21] Because of the overuse of the vague warning, the ubiquitous signs ultimately communicate very little information to the end user.[11][22]This problem has been recognized by California courts,[23][24] advocates,[11][25] and businesses.[14]
[edit] Abuse
Political controversy over the law, including industry attempts to have it preempted by federal law, have died down. However, enforcement actions remain 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.[23][26][27]
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."[28]
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.[29]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.[30] 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.[23]
[edit] See also
∙California ballot proposition
∙Environmentalism
∙Toxicity
∙Pollution
[edit] References
1.^[1]
2.^The "Prop. 65 Kit" [2]by the Environmental Defense Fund includes
a short summary of the law's effects (see "Track Record") as well
as its history, controversies, and industry attempts to eliminate
it.
3.^ See Prop. 65 Kit, above.
4.^ If a "no significant effect" level has been established for a
cancer-causing chemical listed under Prop. 65, then no warning is
required as long as the actual exposure is below that level. But
it is up to the business causing the exposure to know what that level
is, and to do the scientific analysis if government has not already
done so.
5.^ Unpublished report, reproduced in original form as
"Accomplishments Summary" in the Prop. 65 Kit [3]
6.^ Prop. 65 ballot pamphlet full text available at Hastings'
California Ballot Measures Databases
7.^AB 1756 of 2003
8.^California Cleaners breaking news
9.^ . "CA Proposition 65 Signs". InfoTag, Inc..
/ChemBioCAPROP65.shtml. Retrieved
2008-07-22.
10.^"Prop 65 Made Simple". Prop 65 News. 2005.
/pubs/brochure/madesimple.html.
Retrieved 2008-07-22. "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."
11.^ a b c 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.
12.^ Watts Water Technologies, Inc.. "California Proposition 65".
/prop65.asp.
13.^ Kaweah Delta Health Care District. "Electronic Devices".
/guide/edevices.asp.
14.^ a b c California Hotel & Lodging Association (2004-07-07).
"California Hotel & Lodging Association Helps Lodging Guests
Understand Proposition 65; Court Approval Obtained for
Comprehensive Compliance Procedure". Press release.
/2004/july/0707-04t.htm. Retrieved
2008-07-22. ""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..."
15.^Office of Environmental Health Hazard Assessmen. "Comparison of
the Warning Requirement and the Government Employee Disclosure Requirement". California Environmental Protection Agency.
/prop65/background/P65Facts.html.
16.^Office of Environmental Health Hazard Assessmen. "Proposition 65
Fact Sheet for Tenants". California Environmental Protection
Agency. /prop65/background/P65ten.html.
17.^ . "California Proposition 65".
/California-Proposition-65/b?ie=UTF8&node= 1041180.
18.^Lucas, Greg (2005-05-25). "Cancer label for foods is considered".
San Francisco Chronicle.
/cgi-bin/article.cgi?file=/c/a/2005/05/25/ MNGD2CU9RA1.DTL&type=printable.
19.^"July 2008 bill inserts". Pacific Gas and Electric Company.
/customer_service/bill_inserts/#proposition--publicwarning. Retrieved 2008-07-22. "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."
20.^April 2004 bill insert from PG&E[dead link]
21.^"Proposition 65 Safe Drinking Water and Toxic Enforcement Act of
1986". State of California. 1986.
/prop65/law/P65law72003.html. Retrieved 2008-07-22.
22.^Consumer Defense Group v. Rental Housing Industry Members, 40 Cal
Rptr 3d 832 (Cal. Ct. App. 4th Dist. Div. 3 2006-03-24). “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.”
23.^ a b c Consumer Defense Group v. Rental Housing Industry Members,
40 Cal Rptr 3d 832(Cal. Ct. App. 4th Dist. Div. 3 2006-03-24). “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.””
24.^ Pamela A. MacLean (2006-04-13). "Calif. Judge Blasts Firm in
Toxic-Warnings Case". The National Law Journal.
/jsp/article.jsp?id=1144672792347. Retrieved 2008-07-22.
25.^"Equity and Environmental Justice Considerations in
Electromagnetic Field (EMF) Policy".
/emf/pdf/AppendixD-EJ.PDF. Retrieved
2008-07-22. "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."
26.^Defending the Proposition 65 Bounty Hunter Case
27.^ Dorothy Pomerantz (2001-10-15). "Toxic Avengers - ".
Forbes. /forbes/2001/1015/080.html.
Retrieved 2008-07-22.
28.^NGO Strategies for 2004 and Beyond
29.^Cal. Attorney General news alert, paragraph 10
30.^ Chapter 3 - Settlement Guidelines, Cal. Attorney General's
Proposition 65 regulations
[edit] External links
∙Official Proposition 65 website
∙Official Proposition 65 list of substances
∙Proposition 65 updates
∙California Attorney General - Proposition 65 regulations
∙ -Toxic Avengers, Morse Mehrban gets rich from Proposition 65
∙California Proposition 65
∙Environmental Law Foundation of California
∙Prop. 65 Clearinghouse Research Center
"/wiki/California_Proposition_65_(1986)" Categories: California ballot propositions, 1986 | Environment of California | United States state environmental legislation
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