Back in 1986, 64% of the voters of California enacted Proposition 65: The Safe Drinking Water and Toxic Enforcement Act. Who could be against it? Well, I was working as an editorial writer for the San Jose Mercury News at the time, and I wrote the paper\’s editorial explaining why the law was misguided.
The main thrust of Proposition 65 was to require putting up signs to warn people when they were near something that was a known carcinogen. This sounds reasonable enough, until you realize that many common products have very small amounts of ingredients that, if consumed in bulk, could pose a risk of cancer. The law, which now requires notifications of over 860 chemicals, made no clear distinction between whether exposures were high or low. Michael L. Marlow looks at the current status of Prop. 65 in \”Too Much (Questionable) Information?\” which appears in the Winter 2013-14 issue of Regulation magazine. Marlow gives an example of the Prop. 65 \”warnings that must be
issued by a typical California hotel.\”
\”The warnings include: mercury in seafood; secondhand tobacco smoke; cleaning supplies and related activities; on-site construction; furnishings, hardware, and electrical components, including furniture, window treatment, locks, keys, electrical equipment, and carpeting; personal hygiene and medical supplies, including soaps, shampoos, and first aid supplies; hotel water supply systems, including faucets and other plumbing components; combustion sources, including automobile engines, gas stoves, fireplaces, and candles; office and art supplies and equipment, including carbonless paper, marking pens, copier machine chemicals, glues, crayons, and paints; landscaping supplies and pesticide treatment, including fertilizers, soil amendments, and pesticides; food and beverage service, including broiled and barbecued foods; transportation-related exposures, including motor fuels and engine exhaust; equipment and facility maintenance, including motor oil changes, carburetor cleaning, battery replacement, and facility repairs; retail sales; and recreation facilities, swimming pools, hot tubs and beaches,including beach sand (which can contain quartz sand, a form of carcinogenic crystalline silica).\”
As the last example makes clear, the Prop. 65 rules don\’t distinguish between manufactured products and naturally-occurring carcinogens. Certain foods like bread and chicken have trace amounts of chemicals that, if fed to lab rats in large doses, can cause cancer. So restaurants need to post Prop. 65 signs, too. Unsurprisingly, when Marlow dredges through the statistics at some length, there isn\’t any clear evidence that Prop. 65 affected cancer rates.
But if the Prop. 65 signs raise consciousness a bit about health risks, even if in a potentially confusing way, is there any real harm? Well, this is where the \”bounty hunter\” provisions become important. The law was to be enforced by people bringing suit. Marlow explains:
\”Proposition 65 allows anyone bringing lawsuits to collect a portion of the civil penalties. Civil penalties of up to $2,500 per day for each violation are allowed, with one-quarter going to the party bringing suit. These payments are not linked to litigation costs, but are in effect “profits” without associated costs from litigation. Plaintiffs threatening litigation have increasingly switched their focus to demanding that businesses surrender payments directly to them rather than paying civil penalties. Plaintiffs are entitled to reimbursement of their costs of bringing a Proposition 65 suit. Businesses, however, are unlikely to collect their attorneys’ fees even if they prevail in court. Businesses are thus likely to be stuck with paying attorney fees on both sides of the case, as well as civil penalties, thus creating significant profit motives for the bounty hunters. Expert witnesses and the
indefinite nature of standards make for costly case-by-case litigation. …
\”The California Appellate Court in 2006 noted that bringing a Proposition 65 bounty-hunter action is so “absurdly easy” that the attorneys’ fees paid by defendants to avoid litigation are “objectively unconscionable.” … Over 2000–2011, there were 2,381 settlements. in 2011 alone, there were 338 settlements—the highest number of any year in this period. no information exists on how many settlements occurred prior to the 1999 amendments. Total settlement amounts over the 2000–2011 time frame totaled nearly $180 million (in 2011 dollars). that figure underestimates total costs to firms because it does not include legal and expert witness costs of defendants or court costs for cases that went to trial. Plaintiff s receive most settlement dollars in the forms of attorney fees and “other” payments made directly to organizations bringing suits or other organizations designated by filing organizations, with the California government receiving less than 15 percent of settlement costs in recent years.\”
I took some flak back in 1986 for opposing Prop. 65. But requiring a multitude of vague warnings, combined with a license to sue, is not sensible public policy.