This year is the 30th anniversary of California’s chemical warning law, Proposition 65. To mark the occasion, I published an article in the Journal of Business & Technology Law outlining the law’s biggest flaws—the lack of adequate information provided to consumers through Proposition 65 warnings and the abuse of the law by bounty hunters. My article offers alternative approaches to Proposition 65.
Since its overwhelming passage in 1986, it’s become nearly impossible in California to avoid seeing Proposition 65 warnings. Hotels, restaurants, ballparks, parking garages, office buildings, amusement parks, and pools, along with thousands of consumer products, warn Californians (and many outside California) of possible exposure to carcinogens or reproductive toxins.
Part of the reason for this warning explosion is the sheer number of chemicals identified by California as carcinogens or reproductive toxins. The list has grown to more than 800 chemicals with no end in sight, and more chemicals beget more ill-informed warning labels that provide little useful information to consumers.
These warnings aren’t required if businesses can show that exposure to a listed chemical is below a so-called safe harbor level. But the state of California’s penchant for adding chemicals to its warning list has far surpassed its ability to establish safe harbor levels for every chemical. Thus, businesses often opt to over-warn by providing a warning even when consumers are exposed to little if any of a Prop 65-listed chemical.
Businesses also over-warn to protect themselves from bounty hunter lawsuits. As many of those who opposed Prop 65’s passage in 1986 foretold, the law has become a “bonanza for private lawyers.” Bounty hunters filing lawsuits against businesses can collect a portion of the civil penalties, on top of attorney fees. Winning a Prop 65 lawsuit is difficult, costly, and time consuming for businesses—unlike most environmental and health statutes, Prop 65 shifts the burden onto businesses to prove that an exposure to a listed chemical is below the safe harbor level. Not surprisingly, businesses generally opt to settle with bounty hunters.
There has been a long string of attempts to reform Prop 65, but the state has yet to fix these key problems. The latest reform proposal does little to improve the usefulness of these warnings for consumers.
Warnings will come with a pictogram “hazard” symbol and name at least one listed chemical, but businesses would be barred from providing consumers with factual information that puts warning in context for consumers—even information from federal agencies like the U.S. Food and Drug Administration. Consumers looking for more information will be referred to a state-run website that offers very little helpful context about health risks. This website has already launched, and you can read more about the problems with the website here.
There are undoubtedly other approaches that could serve to redress Prop 65’s warnings and its other flaws, which I’ve highlighted in my journal paper, available for download here. Until significant changes are made, bounty hunters continue to thrive, benefits remain elusive, and the costs on businesses, consumers, and taxpayers continue to mount.