The follies and excesses of Proposition 65

Will Swaim
President of the California Policy Center

It’s been a bad summer for Proposition 65, which is a good thing for California’s small businesses and consumers.

Prop. 65 is the California law responsible for the cancer-warning signs so ubiquitous that most Californians know it’s better just to ignore them.

In bars and restaurants, on playground equipment, shoes, umbrellas, and golf club covers, even around Disneyland, consumers are warned that product — even the place itself — “is known to the state of California to cause cancer or reproductive harm.”

While most Californians treat these with bemusement, they are no laughing matter. They mislead consumers and expose small businesses to ruinous lawsuits. And because California is the world’s fifth-largest economy (that’s the United Kingdom riding our bumper), decisions made in Sacramento can have disastrous national effects.

Fortunately, Prop. 65 has suffered a couple of recent major setbacks. State lawmakers should ride this momentum to make meaningful reforms to rein in this posterchild of over-regulation. The California Policy Center is doing its part by highlighting some of the most ridiculous Prop. 65 warning labels in a contest that starts today. Visitcaliforniapolicycenter.org for more information.

In August, the U.S. Environmental Protection Agency took the unprecedented step of issuing guidance stating it won’t approve of Prop. 65’s “false labeling” on the weedkiller Roundup because the science doesn’t support it. EPA didn’t mince words: “It is irresponsible to require labels on products that are inaccurate when EPA knows the product does not pose a cancer risk,” said EPA Administrator Andrew Wheeler. “We will not allow California’s flawed program to dictate federal policy.”

This federal action against Prop. 65 came on the heels of a long-sought Prop. 65 exemption for coffee in June. This Prop. 65 about-face was the result of outrage from coffeemakers, drinkers and even scientists who demonstrated that coffee was not a cancer risk. Another federal agency — the Food and Drug Administration — threatened to “step in” if the state went ahead with Prop. 65 labels for coffee. Former FDA Commissioner Scott Gottlieb explained that these “could mislead consumers to believe that drinking coffee could be dangerous to their health when it actually could provide health benefits.”

Prop. 65 is often out of step with scientific consensus because it draws from a reference list of nearly 1,000 chemicals, which state regulators say could cause “one excess case of cancer in 100,000 individuals exposed to the chemical over a 70-year lifetime.” At such a low bar, everything causes cancer.

Like so many regulations, the biggest victims of Prop. 65 are small businesses. Prop. 65 deputizes private trial lawyers to search for evidence of noncompliance. Small businesses, which generally don’t have the resources to fight costly legal battles, are often compelled to settle. Because the penalties for failure to warn are so steep, businesses paid $35 million in Prop. 65 settlements in 2018, with more than three-quarters of this total going to attorney fees. Some lawyers who specialize in this area take home more than $1 million in fees per year.

Are there some consumer products that really are dangerous and should come with a consumer warning? Of course. But Prop. 65 ironically makes consumers less safe because it dulls our reactions to real threats. If everything has a warning then, in effect, nothing does. Thanks to Prop. 65, consumers have no way to measure their real risk.While the logical case against Prop. 65 is airtight, perhaps the most effective way to illustrate its absurdity is simply by showing real images of these warning labels. Just as Malcolm Gladwell explained in his bestselling 2005 book Blink that you can learn more about someone by glancing at their bookshelf than by hours of conversation, Californians can discover more about Prop. 65 by viewing these images than by studying the junk science that underlies them.

That’s why the California Policy Center has been awarding a weekly prize for the craziest Prop. 65 image submitted by the public for the last year. We’ve received some mind-blowing photos, including Prop. 65 warnings on such items as prenatal vitamins, gingerbread houses, and even an entire gym. Now that we have 52 images, we’re asking the public to vote for their favorites to determine a grand prize winner.

If pictures truly speak louder than words, winter is coming for Prop. 65.

Comment on this article


Please note, statements and opinions expressed on the Fox&Hounds Blog are solely those of their respective authors and may not represent the views of Fox&Hounds Daily or its employees thereof. Fox&Hounds Daily is not responsible for the accuracy of any of the information supplied by the site's bloggers.