Thirty-five years ago, California voters approved a law that fundamentally changed the consumer safety landscape in this country. Proposition 65, the Safe Drinking Water and Toxic Enforcement Act, adopted on Nov. 8, 1986, has become both famous and infamous, not just in the Golden State but around the world.
We’ve all seen the ubiquitous warning labels on everything from nori seaweed to bathing suits. Proposition 65 is a well-worn punchline and punching bag for its critics. Even the state agency responsible for overseeing Proposition 65, the Office of Environmental Health Hazard Assessment (OEHHA), has reportedly acknowledged a “white noise” effect of overwarning consumers.
But the law did exactly what it was intended to do. It checked corporate behavior and made consumers safer. Originally targeted at eliminating toxic substances in the water supply, Proposition 65 did far more, forcing companies to re-engineer products. It also educated the public about unseen dangers lurking in everyday products.
The results haven’t just helped California consumers. People across the country also benefit, as the law in the country’s largest market forced a known carcinogen out of a soft drink’s secret formula.
Changes in Proposition 65 Since Adoption
Like every transformative law, Proposition 65 has undergone considerable change since it was adopted. In the past few years, the labeling requirements have changed so that consumers must be notified of specific chemicals in products, as opposed to general blanket warning labels.
This change was a good step, but more changes would add strength and accountability, such as establishing and codifying exposure time frames—daily for items such as baby food; weekly, monthly, or even yearly for other items.
Manufacturers also should be required to test their products or provide independent lab reports before putting them on the market. The basic process is, however, sound: OEHHA’s list undergoes a thorough and rigorous annual review, with a public comment period, and compliance guidelines are clear and accessible.
To those who question the law’s continued value, I would say that it would be incredibly short-sighted to throw out the baby with the—now detoxified—bathwater. I have spent more than a decade in the Proposition 65 trenches and have personally witnessed the impact and life-saving import of the law on consumers.
This may sound like something out of a horror film, but in the year 2021, parents actually feed their infants lead-contaminated baby food, according to a U.S. House subcommittee report. These are not second-rate knock-offs; They’re foods sold by Gerber, Beech-Nut, Hain, Nurture, and other trusted names. And they bear no health warnings.
Despite consensus across the scientific community that even tiny amounts of lead can cause irreversible neurologic and health damage to babies, these companies gleefully cash in on consumers’ ignorance and the absence of federal lead standards. I am personally involved in suing these companies under Proposition 65 to force them to remove the lead from their baby foods.
Proposition 65 and Federal Law
Under federal laws, the government cannot limit a chemical unless it has decided it is an affirmative hazard. The chemical is thus innocent until proven guilty. Companies game the system by remaining uninformed about acceptable levels: Why expose themselves to regulation when they can easily avoid it?
Under Proposition 65, the presumption of guilt is completely flipped. The onus is on companies to prove that a warning label isn’t required because the level of lead in baby food is so low that it is not a hazard.
The FDA is finally taking action on lead levels, but its proposed standards aren’t expected to be implemented until 2024, far too late for babies ingesting heavy metals right now. Without the standards and enforcement mechanisms created under Prop. 65, Gerber and others could have eluded accountability for many more years.
Proposition 65 may have been the first comprehensive effort to hold companies accountable for what they put into their products, but it won’t be the last. Similar legal efforts are occurring in other states, and companies with national and international distribution channels generally have shown a willingness to do the right thing for their consumers. In an increasingly chemical world, Prop. 65’s mission could be even more critical today than when it was first enacted.
The law itself is clear and concise: “[N]o person in the course of doing business shall knowingly discharge or release a chemical known to the state to cause cancer or reproductive toxicity into water” or anywhere else where it might lead to a drinking water source. “[N]o person in the course of doing business shall knowingly and intentionally expose” anyone to those chemicals “without first giving clear and reasonable warning.”
Of the more than 900 substances that are on OEHHA’s list of chemicals known to cause cancer, birth defects, or other reproductive harm, threshold levels have been formulated for about 300. Today, more chemicals have recognized safe levels under Prop. 65 than under all federal laws combined. The law provides a safe harbor for products with less than those threshold levels, and companies that exceed them face a simple choice: Change the products to make them safer, or slap warning labels on them.
Businesses that want to allay consumers’ fears while also protecting them and their loved ones will, presumably, do the former. For companies that choose to go the warning label route, it will be caveat emptor. Consumers will have been made aware that there are toxic chemicals in the products they’re purchasing, and they’ll be able to make informed choices about the risks of buying and using those products.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Vineet Dubey is a co-founding partner of Custodio & Dubey LLP in Los Angeles where he practices environmental litigation, primarily suing companies selling goods to the California public containing toxic, cancer-causing chemicals. He has been lead counsel in more than 500 Proposition 65 and civil rights cases.