Proposition 65

Proposition 65

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% vote. 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).[1] 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 remains politically controversial [3] well over a decade since it passed, in large part because, in effect, it puts the burden of proof on business instead of government to make a key scientific determination about safety levels for specific chemicals.[4] According to the California Environmental Protection Agency, "Proposition 65 has... increased public awareness about the adverse effects of exposures to listed chemicals.... [and] provided an incentive for manufacturers to remove listed chemicals from their products.... Although Proposition 65 has benefited Californians, it has come at a cost for companies doing business in the state."[5]

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:[6]

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.

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]

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).

Businesses can become compliant by learning upfront whether or not their products contain chemicals that match the current Proposition 65 list of 910 chemicals. Users can do this by searching in a Microsoft Excel[9] chemical list or a website offering the search by chemical name or CAS Number.[10] Product manufacturers may also learn if a chemical in their products has been removed from the Proposition 65 list, such as Saccharin, removed December 2010.[11] Alternatively, they can post generic Prop 65 warnings just in case their products contain any listed chemicals.

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" .[12]


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.[13] Warning signs are often posted at gas stations,[14] hardware suppliers,[15] grocery stores, drug stores, medical facilities, and many other businesses.[16][17] Government agencies,[18] parking garages, hotels,[17] apartment complexes,[19] retail stores,[20] banks, and restaurants[21] 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[22] or the sand used in sandblasting.[23]

There is no penalty for posting an unnecessary warning sign.[24] Because of the overuse of the vague warning, the ubiquitous signs ultimately communicate very little information to the end user.[14][25] This problem has been recognized by California courts,[26][27] advocates,[14][28] and businesses.[17]

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.[26][29][30]

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."[31]

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.[32] 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.[33] 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.[26]

Reform Efforts In 2013, two efforts to reform abuses of Proposition 65 were introduced in the California state legislature. AB 227, introduced by Assemblyman Mike Gatto (D-Los Angeles) would shield companies that comply with Proposition 65 within 14 days of receiving a 60-day notice of violation from liability under the statute. [34] The proposed legislation would apply to three distinct product groups, and would be limited to violations that can be cured by posting a Proposition 65 complaint warning. AB 227 passed in the California Assembly on May 30, 2013 by a unanimous vote of 71-0. [35] The measure is now making its way through the State Senate.

A bill that purports to ensure that chemicals listed under Proposition 65 "may only be included if there is sufficient evidence that the referenced substance is known to cause cancer or reproductive toxicity" was also introduced in the 2013-2014 legislative session. AB 1026, introduced by Assembly Member Quirk, targets chemicals listed under Section 6382 of the California Labor Code, and appears to be an attempt to codify the opinion by the California Third District Court of Appeal in Styrene Information and Resource Center v. Office of Environmental Health Hazard Assessment (October 31, 2012) 210 Cal.App.4th 1082. [36] While the bill attempts to ensure chemical listings are based on science, it does not appear to recognize that legitimate scientists sometimes disagree on whether a particular chemical has been demonstrated to cause cancer or reproductive toxicity. AB 1026 is currently in the Assembly Environmental Safety and Toxic Materials Committee. Assembly Member Quirk cancelled the second reading of the bill on April 30, 2013.

Following the success of AB 227, Gov. Jerry Brown announced on May 7, 2013 that his office plans to introduce a proposal to reform Proposition 65. [37] Since Brown's initial announcement, his office has held meetings with Proposition 65 stakeholders, but has been tight-lipped about what was accomplished by the meetings. According to Cal/EPA Secretary Matthew Rodriquez, the Governor's office plans to release a white paper after concluding its stakeholder meetings. The white paper may form the basis of a legislative proposal by the Governor.

Reformulation of Consumer Goods

Over the years, Prop 65 has led to consent agreements for a variety of consumer products, such as bibs, bicycles, products containing brass, cookware, cosmetics, exercise mats, ceramic ware and glassware, clothing, fake leather upholstery, headphone cables, jewelry, lunchboxes, poker chips, luggage, and accessories.

In early 2011, a number of new Prop 65 consent agreements were reported, covering vinyl inflatable structures, vinyl lounge chairs, inspection lights with clamp handles, brass door handles, cadmium in jewelry and a revised judgment for fashion accessories.

In the latter part of 2011, further consent agreements were reported. These included reformulation of up to 1000 ppm DEHP for book covers and jackets. Further reformulations for lead content also concluded. For fashion jackets and belts with components that can be handled, touched or mouthed, two tests are necessary for compliance: less than 1.0 µg lead using method NIOSH 9100 and less than 100 ppm lead using EPA 3050B.[38]

More recently, since December 2011 and during the first half of 2012, a further number of consent settlements for Prop 65 have been concluded, enforcing reformulation of a range of additional products by specifying the limits of heavy metals and organic chemicals.

Summary of settlements

In externally decorated glassware the cadmium and lead content are limited, with lower concentrations permitted for the lip or rim region. Lead content is also restricted in ceramic ware with exterior decorations, booster cables, and safety pins in varying concentrations. In the case of safety pins the preliminary limit is 300 ppm for 2012, but a much lower limit of 100 ppm will come into force in 2013. For the grips of hand tools the content of lead and certain phthalates are restricted. Various specific phthalates are also restricted in varying concentrations in notepads with vinyl coverings, purses, slippers, flip flops with rhinestones and similar plastic footwear, ear buds and headsets, and exercise/fitness mats. Restriction on volatile organic compounds (VOCs) is defined for smoothing solution products, and in this case a specific warning is mandatory in the material safety data sheets if the product releases detectable amounts of formaldehyde.[39]

See also

References

External links

  • Official Proposition 65 website
  • Official Proposition 65 list of substances
  • Proposition 65 updates
  • California Attorney General - Proposition 65 regulations
  • Prop 65 News - Free News and Content
  • California Prop 65 Litigation Database
  • California Prop 65 Updates
  • Forbes.com -Toxic Avengers, Morse Mehrban gets rich from Proposition 65
  • California Proposition 65
  • Environmental Law Foundation of California
  • http://www.caslab.com/Proposition-65-List\
  • http://www.infotox.com