Tweaking Toxic Avengers: California Questions the Consequences of Prop. 65

By Glen Martin

Way back in 1986—when it was still Morning in America and women wore padded shoulders and men slathered on so much hair gel their coiffures looked molded in aspic—a citizen referendum passed in California that foreshadowed the current Era of Open Data. Ever since, Proposition 65 has required companies with more than 10 employees to post notices about carcinogenic compounds found on site, and granted private citizen the right to sue businesses that don’t prominently display the requisite warnings.

The results? Those Prop. 65 warning signs are now utterly ubiquitous, from the seashore to the Sierras. And not surprisingly, there have been a flurry—well, more like an unceasing, howling blizzard—of Prop 65-related lawsuits in California courts. According to the National Federation for Independent Businesses, small enterprises shelled out $22.5 million to settle Proposition 65 cases in 2012—rankling many business owners, who feel they are suffering the depredations of litigious trolls more interested in the lucre than cleaning up the state’s environment.

So lately, California has been having second thoughts about Prop. 65. As the last session of the Legislature came to a close, Gov. Jerry Brown signed a bill making it a little easier on for businesses: Now they can avoid lawsuits over minor violations if they post the requisite signs within two weeks and pay a $500 fine.

And as the new legislative session gets underway, Gov. Brown may resume his previous effort to more thoroughly revise the law. And even some environmentalists have agreed that changes may be in order.

Consumers have been dulled by the plethora of notices. It’s a rare Proposition 65 notice that is in fact noticed by the general ruck (as opposed to potential litigants) these days.

The basic problem is that the full range of contaminants that envelope and infuse us wasn’t grasped when the law was drafted. For example: Your favorite neighborhood breakfast joint is rife with carcinogenic compounds. Acrylamide, a known carcinogen and mutagen, occurs naturally in roasted coffee beans and baked goods. So are espresso bars and diners required to post notices under Proposition 65?

In a word, yes. If the owners don’t comply, they could be sued back to the Stone Age. And let’s face it: That seems like overkill. Nor will it dissuade any serious caffeine and pastry hound. (Acrylamide be damned—You need that morning java and chocolate croissant.)

“The more we study the more we learn, and the more we look, the more we find,” says Eric Biber, a professor at UC Berkeley’s law school and an authority on Proposition 65. “Arguably, there may be compounds on the list that shouldn’t be there. The goal should be getting the maximum benefits from the law with the least social cost and disruption.”

And hitting that balance is tricky. At this point, Proposition 65 has a certain rote, pro forma feel to it.  Businesses—like espresso bars—that common sense would dictate don’t need to tack up notices nevertheless post them prominently.

“It’s just simpler that way,” says Biber. “You put a notice up, you’re done. You can’t get sued.”

Further, consumers have been dulled by the plethora of notices. It’s a rare Proposition 65 notice that is in fact noticed by the general ruck (as opposed to potential litigants) these days. And that can undercut the intent of the law. 

“People have a pretty good sense about the circumstances that may legitimately warrant a notice,” says Biber. “I mean, you can’t do much to mitigate the risk for carcinogenic substances that are formed when food is cooked. On the other hand, you probably want to know if the plastic in your child’s toy is safe or contains carcinogenic chemicals.”

So Biber is among those not averse to the most recent Prop. 65 tweak. Originally, the governor pushed legislation that would have required more precisely defined warnings and limited attorneys’ fees and certain types of litigant restitution. That didn’t get much traction, and Brown ended up signing the less ambitious bill, AB 227, which gives businesses that failed to post the proper signs immunity from further legal action if they put up the signs, pay the fine and notify whoever blew the whistle on them that the problem has been ameliorated.

“It’s an effort to make Proposition 65 a little more nuanced, to ensure that the warnings have the original intended effect rather than just serve as incentives to sue,” Biber says.

But Biber also thinks Proposition 65 remains, at its core, sound law.

“The government has limited resources, and Proposition 65 allows citizens to come in and turn up the pressure in situations where there could be genuine risk to public health,” he insists. “Everything considered, it’s been quite successful. I’d give it a B+.”

Filed under: Law + Policy
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Comments

When a proposition has barely any effect on behavior, it doesn’t deserve a B+. However, I would take a class from Biber, because he sounds like a really easy grader.

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