United States: The New Prop 65 "Fact Sheet" That Misses Some Facts

THE NEW PROP 65 "FACT SHEET" MISSES SOME FACTS

OEHHA's Version of "The Big Picture" of Prop 65 Regulation

The agency that writes the regulations governing Proposition 65 – the Office of Environmental Health Hazard Assessment (OEHHA) – just released something it calls "Toxic Chemicals, Proposition 65 Warnings, and Your Health: The Big Picture." OEHHA bills this as a "Fact Sheet" that talks about how Prop 65 warnings have helped make people safer and provides information on how they can reduce exposure to toxic chemicals. These indeed are facts. However, there are some important facts not covered that give a fuller, more realistic picture of the effects of this law on companies large and small over its 37 years of existence.

Fact: Prop 65 Results in Warnings Where None are Required

OEHHA rightly talks about how Prop 65 has helped make the environment safer. While that is a fact, so too is that way too many Prop 65 cases are about money with the environment being an afterthought. The financial toll Prop 65 settlements and verdicts extract have run some companies into the ground and forced some to stop selling in California, even when the products they sell are safe and do not cause an exposure that requires a warning. Unfortunately, we have seen many businesses take real hits and sometimes get violation notices for multiple products once enforcers see they have settled for one product. Former Governor Jerry Brown called for Prop 65 reform in 2011 because so many claims represented what he called a "shakedown," where too often the primary goal has not been a safer California, but a richer private enforcer and its lawyers. Many, possibly the majority, of Prop 65 matters are settled to avoid the cost of litigation and expert fees, which are almost always in the tens of thousands of dollars. This happens even when there is not an exposure to chemicals that require warnings. Many place warnings on products as a prophylactic measure to avoid the risk and the cost. For the few cases that go to trial defense costs run into the millions. Was this the voters' intent in voting for Prop 65? Does settling not because of an excessive chemical exposure, but instead to avoid going bankrupt help make the environment safer?

Fact: Acrylamide is Not the Prop 65 Success Story OEHHA Claims

Interestingly, OEHHA cites the chemical acrylamide as a success story in its Fact Sheet, saying "Proposition 65 has played a major role in prompting businesses to find ways to reduce acrylamide in foods." Perhaps in some cases, but it is also true that acrylamide's safe harbor level of .2 ug/day is so low that many businesses cannot meet that level for daily exposure in their foods (Prop 65 levels are based on daily exposure in micrograms) and so they decide to place warnings on products instead. Been to a fast food restaurant to order French fries? How about your favorite coffee shop? You will likely see warnings even though there is significant evidence this chemical does not cause cancer. There is litigation right now pending at the Ninth Circuit Court of Appeals where the defendant California Chamber of Commerce argues that acrylamide should not be on the Prop 65 list as there is insufficient evidence that it causes cancer due to the weak studies OEHHA relied on to list it.¹ In fact, some evidence suggests coffee reduces the risk of cancer.

Fact: Prop 65 Must Comply with the Constitution

Defendant in the Cal Chamber case also makes a commercial speech argument - that under the First Amendment a company cannot be forced to put statements like the Prop 65 warning on its products where they are controversial and not settled. There are several federal cases that support this argument and if Cal Chamber is successful in this challenge, even though it would be limited to acrylamide, the reasoning will apply to the law itself and could represent the first in a series of cracks in the law's foundation that could ultimately topple it. OEHHA is undeterred and rolling the dice. Rather than delisting acrylamide, minimizing the potential loss and avoiding the very real risk of an adverse ruling in federal court that could end up undermining the entire law, it created a new optional acrylamide safe harbor warning that, while including some generic "many factors can cause," language, continues to warn that acrylamide is a probable human carcinogen. Defendants rightly reject this proposed compromise. A listing based on faulty science should not be listed and required to have any Prop 65 warning at all.

A More Complete Set of Facts

While the OEHHA Fact Sheet is correct that Prop 65 has contributed to the laudable goal of a better environment and encouraged "some businesses to take steps to eliminate toxic chemicals in their products," the fact is even the government agrees it has also been abused by some as a way to make a quick buck at the expense of many small businesses and based on flimsy evidence. All of this represents an expensive and unnecessary burden to those doing business in California, and the fact is that is not making us safer.

Footnote

1. Cal. Chamber of Comm. v. Becerra, 529 F. Supp. 3d 1099 (E.D. Cal. 2021), aff'd, 29 F.4^th468 (9^thCir. 2022), cert denied, ---U.S.----, ---S.Ct.----, ---L.Ed.2d----, 2023 WL 2959385 (Apr. 17, 2023.)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.