When Proposition 65 was approved by voters in 1986, the goal was simple: to protect California’s drinking water from chemicals known to cause cancer or reproductive harm, and to warn members of the public about the presence of those chemicals in their environment to help them avoid exposure. Since its enactment in 1989, Prop. 65 has helped to protect the public by incentivizing businesses to renovate their facilities, reformulate their products, and update their manufacturing processes to eliminate the use of listed chemicals. There are currently 774 chemicals on the list, and it keeps growing.
But what determines whether or not a chemical causes cancer or reproductive harm? That is the question – the answer depends on what standard is used. Two California Appellate courts have interpreted Prop 65 to require only the listing of “known carcinogens.” However, due to different standards that are used by the National Toxicology Program and the International Agency for Research on Cancer, there can be – and often is – ambiguity.
This is why the National Federation of Independent Business (NFIB) is proud to support and co-sponsor Assembly Bill 1026 (Quirk), which would provide certainty for businesses and ensure that science is the basis for listing chemicals on the Proposition 65 list. With this bill, businesses can be assured that what is listed is something that they need to notify the public and their employees about because it poses a real safety concern.
One of the requirements of Prop 65 is that businesses with more than ten employees post warnings when they knowingly expose workers or the public to listed chemicals. These warnings are listed on placards in the business or as part of the labeling on a consumer product. Consequently, a new industry of attorneys targeting businesses with drive-by lawsuits has now sprung up, resulting in over twice the settlement revenues as Americans With Disabilities Act (ADA) lawsuits. These lawyers allege that a business does not have adequate signage as required by Prop 65. They demand money, and business owners rush to settle for thousands of dollars to avoid litigating in court, which is much more expensive.
Many small business owners have just made an honest mistake and didn’t know that signage was required, but they have no chance to remedy the problem without facing legal action. AB 1026 would ensure that the required warnings are based on adequate science with real evidence, and not just a “gut feeling.”
Additionally, Assembly Bill 227 (Gatto) would help to eliminate the inappropriate use of litigation, while ensuring that the public receives the appropriate Prop 65 warnings. AB 227 would provide a 14-day window to cure a signage violation and avoid a lawsuit in many situations. And the reality is that small business owners want to keep their employees and customers safe. They want people to patronize their business. It is in the business owner’s best interest to make sure that their location is safe and that customers and employees alike are aware of which chemicals are being used.
The problems concerning Prop 65 are so big that the Governor’s administration is looking into a solution. Meanwhile, both AB 1026 and AB 227 will add a measure of certainty for businesses when complying with Prop 65 requirements. And certainty is what small businesses in California need right now in order to create jobs and build the economy in our state.