Make Proposition 65 Meaningful to Consumers – Not More Confusing

John Kabateck
NFIB State Director in California

In May of last year, Governor Jerry Brown declared his intent to pursue reforms to the state’s Proposition 65 -The Safe Drinking Water and Toxic Enforcement Act of 1986. He expressed his deep concern about how the law has been used by lawyers to enrich rather than protect public health, stating: “Proposition 65 is a good law that’s helped many people, but it’s being abused by unscrupulous lawyers.” What’s more, the notices Prop 65 requires businesses to post to warn consumers of the risks of certain chemicals are so ubiquitous – at large, national coffee chains, gas stations, and dentist offices – consumers are no longer paying attention.

However, instead of proposing sensible reforms that return the law to its original intent – to impart meaningful, clear information to consumers – as well as prevent more abusive lawsuits, the Office of Environmental Health Hazard Assessment (OEHHA) has proposed draft revisions that would do neither.

Currently, there are 800 chemicals on the state’s Proposition 65 list, and according to the law, businesses must post warnings if any of the chemicals on the list are present in their products or at their place of business. It sounds fair enough: consumers deserve information and businesses should comply. But when you get into the weeds of how to successfully implement such a regulation when it comes to complex chemistries and different safe thresholds of such chemicals, things get ripe for bounty hunter shakedown lawsuits. Especially for small businesses who do not have the ability to employ a team of chemists to complete their own detailed, expensive analysis of whether certain ingredients potentially found at their place of business – not necessarily in their products – pose a risk to consumers. Instead, when lawsuits are filed, most small businesses do not incur the larger cost of proving their innocence, and settle for whatever is being demanded.

But instead of proposing reforms that impart more meaningful consumer information and prevent the continued proliferation of such lawsuits, the state wants to create a two-tiered notification system: one for listing out a designated twelve chemicals, and one that does not. This approach is most likely to do one or both of the following: A) allow shakedown lawsuits to proliferate as businesses could be sued if they did not include one or more listed chemicals on a label, even if present in miniscule amounts. B) consumers will only heed the ‘special warning’ for the dozen listed chemicals, believing that these twelve have been elevated above all others and again ignore any other Prop 65 notifications. In fact, there are real concerns as to how chemicals make it onto the list in the first place. Coffee, which contains a chemical natural to the roasting process, does not come readily to mind when we think of “dangerous chemicals,” but business owners can be sued over it.

Neither of these outcomes is good for the economy in California or in the best interest of the public. The only thing the two-tiered notification system will do is create more confusion and force businesses to settle more meritless suits. That is why NFIB joined a large coalition of businesses to tell the state that the proposed draft regulations are the wrong approach to ensuring safer, healthier communities with thriving small businesses and jobs. Our members care deeply about their customers’ safety and well-being, and support intelligent reforms to Prop. 65 that impart meaningful information so that consumers can make clear choices.

You can read the coalition’s letter opposing the draft regulations here.

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