Q: What is Proposition 65?
A: Proposition 65, or the Safe Drinking Water and Toxic Enforcement Act of 1986, is a California law passed by direct voter initiative in response to growing concerns over exposure to toxic chemicals released into water sources or found in consumer products. The law is founded on the notion that consumers have a “right to know” when a product contains chemicals that put themselves and their loved ones in harm’s way; if a product contains an unsafe amount of a chemical known to cause cancer, birth defects or other developmental harm, Proposition 65 requires that it carry a warning alerting consumers to the danger. The measure was supported by a supermajority of California voters, and in the decades since its introduction, tens of thousands of dangerous products have been identified as such, enabling Californians to make informed decisions about the products and the chemicals to which they and their families are exposed.
Q: What chemicals, and at what levels, require a warning under Prop 65?
A: The list of known toxins covered by Proposition 65 is maintained by the California Office of Health Hazard Assessment (OEHHA). This list is updated as new scientific data regarding the effects that synthetic chemicals have on human health comes to light. Decisions to add chemicals to the list of chemicals that are known to cause cancer, birth defects, or other
reproductive harm are made by committees of experts who consider the body of scientific knowledge pertaining to the health effects of those chemicals. More complete information regarding OEHHA’s procedures, as well as the most current list of covered chemicals, can be found
here on OEHHA’s official website.
Q: How is Proposition 65 enforced?
A: Enforcement of the standards laid out in Proposition 65 can be carried out by the California Attorney General, District or City Attorneys, or private parties, through civil litigation. Thus, the law allows various persons and entities to be on guard for the public good, protecting consumers’ right to know whether the products they purchase contain harmful chemicals.
Q: Doesn’t allowing for private enforcement create the potential for abuse by “bounty hunters”?
A: Yes. Like all areas of civil litigation, bad actors can abuse the law to file unwarranted lawsuits. The consumer protections laid out in Proposition 65, just like the provisions of personal injury and employment discrimination law, can be misused. As undesirable and frankly reprehensible as that may be, the possibility (and too often, reality), of misconduct
by unscrupulous attorneys needs to be balanced with the good that such provisions do to protect the public interest at large. At Yeroushalmi & Yeroushalmi we work hard to properly enforce Proposition 65 in order to maximize its virtuous purpose.
We always conduct rigorous scientific analysis, with multiple failsafe checks, to ensure that each and every case we take on is fully justified under the law (in spirit and in science) and addresses a product that poses a material danger to public health. We undertake each case with a strong sense of integrity and duty, and do so only after making sure that the science is on our side. We consider this the not-so-secret-secret to our decades of success fighting to protect the public’s right to know.
Q: Isn’t Proposition 65 bad for businesses?
A: It’s easy to see why some might argue that it is. Proposition 65 does place a responsibility on businesses with more than 10 employees to ensure that products which contain dangerous chemicals contain the proper warning labels. Undeniably, this responsibility carries with it some financial burden. However, Proposition 65 is not the first law intended to improve the consumer market place over the last century.
From the Meat Inspection Act, to the Food, Drug, and Cosmetic Act, to ingredient and allergen labeling requirements, every such advancement raised the quality of goods and the availability of product information in the marketplace and placed a similar responsibility on businesses. Such laws did not have the effect of pushing American businesses down, but of calling on them to rise to the occasion and adopt better business practices.
History has proven wrong those opponents who forewarned of the harmful impacts that such consumer improvement measures may have had on American businesses. Instead, the effects demonstrate that such higher standards improved business in America. When we go to the store, our food carries labels informing us of their ingredients and nutrition information. Yet, American agriculture and food services still thrive. Those that would have us believe that American businesses cannot remain profitable while respecting consumers’ right to know have little appreciation of history, and even less respect for the adaptability of the capitalist system, and belief in the ingenuity of the American people.