California Proposition 65 (1986)
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Proposition 65 is a California law that has been in effect since 1986 to promote clean drinking water and keep toxic substances that cause cancer and birth defects out of consumer products. Proposition 65's formal title is "The Safe Drinking Water and Toxic Enforcement Act of 1986." It is administered by Cal/EPA's Office of Environmental Health Hazard Assessment (OEHHA). The law requires that anyone at reasonable risk of exposure be informed when substances classified as toxins are present. Since enactment, it has been the reason for the addition of notices of specific contents to consumer product labels. Along with the added label requirements, an official list of implicated substances is maintained and made publicly available. Entries are added or removed based on current scientific information. All substances listed show their known or suspected risk factors, a unique CAS chemical classification number, the date they were listed, and if so, whether they have been delisted.
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[edit] Rationale and Enumerated Rights
In addition to amending the Health and Safety Code, Proposition 65 contained the following language in the 1986 ballot initiative:
"SECTION 1. The people of California find that hazardous chemicals pose a serious potential threat to their health and well-being, that state government agencies have failed to provide them with adequate protection, and that these failures have been serious enough to lead to investigations by federal agencies of the administration of California's toxic protection programs. The people therefore declare their rights:
(a) To protect themselves and the water they drink against chemicals that cause cancer, birth defects, or other reproductive harm.
(b) To be informed about exposures to chemicals that cause cancer, birth defects, or other reproductive harm.
(c) To secure strict enforcement of the laws controlling hazardous chemicals and deter actions that threaten public health and safety.
(d) To shift the cost of hazardous waste cleanups more onto offenders and less onto law-abiding citizens.
The people hereby enact the provisions of this initiative in furtherance of their rights."[1]
The Legislature's 2003 amendments to Proposition 65 contained the statement that the changes "further the purposes of the Safe Drinking Water and Toxic Enforcement Act of 1986."[2]
[edit] Enforcement
Enforcement is carried out through civil lawsuits against Proposition 65 violators. These lawsuits may be brought by the California Attorney General, any district attorney, or certain city attorneys (those in cities with a population exceeding 750,000). Lawsuits may also be brought by private parties "acting in the public interest", but only after providing notice of the alleged violation to the Attorney General, the appropriate district attorney and city attorney, and the business accused of the violation.
A Proposition 65 Notice of Violation must provide adequate information to allow the recipient to assess the nature of the alleged violation. A notice must comply with the information and procedural requirements specified in regulations. A private party may not pursue an enforcement action directly under Proposition 65 if one of the government officials noted above initiates an action within sixty days of the notice. After 2003, private enforcers must also serve a certificate of merit (statement of expert consultation(s) supporting belief of reasonable and meritorious private action) as a means of preventing frivolous enforcement actions.
A business found to be in violation of Proposition 65 is subject to civil penalties of up to $2,500 per day for each violation. In addition, the business may be ordered by a court of law to stop committing the violation. [3] Other penalties may apply, including unfair business practices violations as limited under California Proposition 64 (2004).
[edit] Warning label
The following warning label must appear on products sold in California if they contain chemicals on the Proposition 65 list of hazardous substances.
WARNING: This product contains chemicals known to the State of California to cause cancer and birth defects or other reproductive harm.
The wording can be changed as necessary, so long as it communicates that the chemical in question is known to the state to cause cancer, or birth defects or other reproductive harm. Common variations include "This area contains chemicals known to the State of California to cause cancer, or birth defects or other reproductive harm" or "Chemicals known to the State of California to cause cancer, or birth defects or other reproductive harm may be present in food or beverages sold or served here."[1]
Nearly all businesses in the state post similar notices on their premises, even when they are unaware of any listed chemicals being present. Warning signs are always posted at gas stations, hardware suppliers,[2] grocery stores, drug stores, and medical facilities.[3] Most government agencies,[4] parking garages, apartment complexes,[5] retail stores,[6] banks, and restaurants[7] also post warning signs because of the possibility of hazardous chemicals being present in everyday items, such as a car or a computer, or because tobacco smoke from a passerby might drift in through an open window. Some large businesses, such as utility companies, mail a Prop 65 notice to all customers each year to warn them of dangerous substances like natural gas[8] or the sand used in sandblasting.[9]
There is no penalty for posting an unnecessary warning sign. Because of the overuse of the vague warning, the ubiquitous signs ultimately communicate very little information to the end user.[10]
[edit] Abuse of Proposition 65
The legislation is very controversial.[citation needed] Most of the Proposition 65 lawsuits are filed by private attorneys some of whose entire business is built on filing Proposition 65 lawsuits.[citation needed]
Labeling requirements conceded the reality that listing and classifying substances did not help the consumer if the contents of a purchase were unknown. At the same time, there were no other labeling requirements to support the proposition. Industry critics and corporate defense lawyers charge that Proposition 65 is "a clever and irritating mechanism used by litigious NGOs and others to publicly spank politically incorrect opponents ranging from the American gun industry to seafood retailers, etc." [4]
In addition, because the law allows private citizens to sue and collect damages from any business violating the law, there have been cases of lawyers and law firms using Proposition 65 to force monetary settlements out of California businesses.[5] The Attorney General's office has cited several instances of settlements where plaintiff attorneys received significant awards without providing for environmental benefit to the people of California, resulting in the requirement of the Attorney General's approval of pre-trial Proposition 65 settlements.[6]
[edit] See also
[edit] External links
- Official Proposition 65 website
- Official Proposition 65 list of substances
- Proposition 65 updates
- OEHHA website
- California Attorney General - Proposition 65 regulations
- Prop. 65 Clearinghouse -- California's Proposition 65 Resource for Accurate, Unbiased and Timely Information
- Forbes.com -Toxic Avengers, Morse Mehrban gets rich from Proposition 65
[edit] Footnotes
- ^ Prop. 65 ballot pamphlet full text available at Hastings' California Ballot Measures Databases
- ^ AB 1756 of 2003
- ^ California Cleaners breaking news
- ^ NGO Strategies for 2004 and Beyond
- ^ Cal. Attorney General news alert, paragraph 10
- ^ Chapter 3 - Settlement Guidelines, Cal. Attorney General's Proposition 65 regulations
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