The Good, Bad, and Ugly on California Prop 65

It seems that every site I go to nowadays and several of the products that I buy have a California Prop 65 warning on them. When I talk to people in states other than California, they start to get nervous and freak out when seeing a Prop 65 warning on a product. However, when I talk to people from California, when they come across a Prop 65 label, their response is "so what?" Californians appear to be immune to this label. Since many people have been inquiring about California Proposition 65, or Prop 65, as it relates to skin care and cosmetics products, I decided to do some further research and digging on this topic. Prop 65, also called the Safe Drinking Water and Toxic Enforcement Act, was enacted in 1986 and meant to inform and protect consumers. But, is it really doing that or is it just making some lawyers rich off of corporate blackmail?

Prop 65 came about from a growing concern that many chemicals may cause cancer, birth defects, or other reproductive harm. Under Prop 65, chemicals identified by the state as having even a 1 in 100,000 chance of causing such harm may not be discharged into drinking water or onto land where they could contaminate sources of drinking water. In addition, manufacturers are required to post clear and reasonable warnings on any products, or in any locations, that could "knowingly and intentionally" expose consumers to any of these listed chemicals. California is required to update the list of harmful chemicals annually. As of 2015, the list includes around 900 chemicals, some of which are monitored by the FDA and EPA.

Labels warning that a product contains compounds that may cause cancer, birth defects, or reproductive harm are now required on many household items, electrical wires, jewelry, padlocks, dishes, flashlights, pesticides, cosmetics, skin care, at restaurants and fast food chains, etc. sold in California. But people all over the country see these Prop 65 labels because many companies put them on all items that contain these chemicals, even if they’re sold in other states. A friend of mine recently bought a toaster at Macy’s and a Prop 65 warning was on it. Aspirin and aloe vera are on the Prop 65 list. Even schools in California and Starbucks have the Prop 65 warning on their doors. When it comes to cosmetics and skin care products with these so-called chemicals in them, you'd have to eat large quantities of the chemicals in question for them to be harmful or potentially cause cancer. Last time I checked, most people don’t eat a tube of sunscreen daily or snack on mascara!

Some California Prop 65 Background

According to Cancer.org, California’s Proposition 65, also called the Safe Drinking Water and Toxic Enforcement Act, was enacted in 1986. It is intended to help California residents make informed decisions about protecting themselves from chemicals known to cause cancer, birth defects, or other reproductive harm.

As part of the law, the state is required to publish a list of chemicals that are "known to the state of California to cause cancer or reproductive toxicity." The list is updated at least once a year and now contains around 900 different chemicals. The complete list can be found on the California Office of Environmental Health Hazard Assessment (OEHHA) website.

Some of the substances listed by OEHHA can affect the reproductive systems of men and women while others are thought to cause cancer. Scientists classify all of these cancer-related substances at least as probable carcinogens, meaning that they might cause cancer in some people. But not all of them are known to cause cancer by groups and experts outside the state of California. This means that not every compound labeled as a possible cancer-causing substance has been proven to the worldwide scientific community to actually cause cancer.

The law defines "no significant risk" as a level of exposure that would cause no more than 1 extra case of cancer in 100,000 people over a 70 year lifetime. So a compound can be unlabeled if a person exposed to the substance at the expected level for 70 years is estimated to have a 1 in 100,000 chance or less of getting cancer due to that exposure. The law also has similar strict cutoff levels for birth defects and reproductive harm.

Manufacturers are not required to provide the OEHHA with any information about the products. That means the OEHHA doesn’t know which chemical the warning refers to, how exposure could occur, or how much of the chemical a consumer is likely to be exposed to. All of these factors are critical when determining how much risk it might pose. The OEHHA doesn't offer information to help consumers figure out what the potential risk is and how to avoid it. These kinds of details can only come from the product’s manufacturer.

So What Does this Really Mean for You?

The Prop 65 labels only tell you that a product has something in it that "might" potentially cause cancer or affect reproduction. They don’t say what the substance is, where it is in the product, how you might be exposed to it, what the level of risk is, or how to reduce your exposure. Properly drafted, Prop 65 may have done some good. I agree that it’s important to help consumers make an informed choice about the products they buy. However, in Prop 65’s case, I feel that what was meant to be a health initiative to inform consumers of potential hazards is pretty much useless and is controlled by an industry of trial lawyers claiming to act in the public interest while they use the law to line their own pockets.

So then what do Prop 65 warning labels on products and places accomplish? It isn’t keeping consumers safe and it’s rather discouraging. In my opinion, we all might as well live in a bubble, not eat anything, and not even breathe the air all around us if we follow Prop 65 labels to a tee! For example, an herbal supplement company could face a potential lawsuit for not labeling a folate product that contains naturally occurring lead just above the allowable limit established by Prop 65. These are not toxic levels of lead, but levels similar to those one might expect from eating a serving of spinach. Our bodies expect and are designed to remove these naturally occurring levels of lead or other heavy metals from our bodies. Because of Prop 65, supplement companies making quality products are forced to put the same label on their products as a stain-removing laundry detergent containing large amounts of formaldehyde. Does this really help consumers?

As a result, many companies simply choose not to do business in California. Other companies that sell into California choose to label their products as a precautionary measure to avoid potential lawsuits, even when it is not necessary. In most cases, California doesn’t even say what the toxic level is per chemical in question, so the producer of the product has to guess what toxic level might trigger a lawsuit, and stay below that level. Crazy! If they really wanted to help producers of products and consumers out, them Prop 65 would list all safe and unsafe levels of the chemicals in question.

According the the Alliance for Natural Health USA, Prop 65 sets up a system where private parties, in addition to the attorney general and other entities, can bring a lawsuit against a company for failing to label their products in keeping with Prop 65’s guidelines. Rather than serving as a valid and useful enforcement mechanism, the private right of action has been exploited by "bounty hunters" seeking attorneys’ fees and settlements rather than improving public safety. Private parties are guaranteed 25% of any civil penalties resulting from the suit and are reimbursed for attorneys’ fees, creating a profit incentive for even merit-less litigation. Prop 65 settlements often establish payments in lieu of penalties in which private organizations designated by the plaintiff receive money that would otherwise have gone to the state. Because there is no state oversight, law firms can then use these payments to bring more lawsuits, force similar settlements, and continue the cycle, since they know full well that companies can’t afford the astronomical costs of prolonged litigation.

So as you can see…Prop 65 warning labels are now found almost everywhere and on almost everything…in restaurants, beaches, parking garages, auto repair shops, theme parks, coffee shops, art supplies, faucets, gardening products, medical supplies, window treatments, cosmetics, skin care products, and many more. The warnings are ubiquitous, rendering them meaningless to consumers. In a 2014 Property and Environment Research Center (PERC) study, cancer rates in California have not fallen significantly since Prop 65 took place compared to other states. Little to no statistical support was found that Prop 65 significantly influenced cancer rates in California. Lack of available data didn't allow for similar examination of the law's effect on reproductive health. Public health hasn't demonstratively improved because of Prop 65, but the law has imposed many costs on business owners, workers, customers, and tax payers.

If Prop 65 labels only tell you that a product has something in it that "might" cause cancer or affect reproduction, but they don’t say what the substance is, where it is in the product, how you might be exposed to it, what the level of risk is, or how to reduce your exposure, what good is it doing for consumers except causing scaremongering that isn't necessary? If you are a resident of California, you may want to consider contacting your state legislators and urge them to amend Prop 65 to provide meaningful protections to consumers, rather than hand over settlement money to questionable lawyers.

Sources:

https://www.anh-usa.org/how-did-californias-prop-65-law-go-so-wrong/

https://www.cancer.org/cancer/cancer-causes/general-info/cancer-warning-labels-based-on-californias-proposition-65.html

https://oehha.ca.gov/proposition-65/proposition-65-list

https://object.cato.org/sites/cato.org/files/serials/files/regulation/2014/1/regulation-v36n4-6.pdf

Photo courtesy of Prop65scam.com