California is the only state in the U.S. that has specific regulations on discharging certain chemicals known to cause cancer and birth defects. Furthermore, California Proposition 65 is probably the only law in the World that works to protect individuals from exposure to those harmful substances.
What is California Proposition 65?
California Proposition 65, or simply Prop 65, is a commonly used name for The Safe Drinking Water and Toxic Enforcement Act of 1986, a law of the state of California. The act regulates discharging hazardous and toxic substances known to cause cancer and reproductive harm or birth defects into sources of drinking water and obligates businesses to provide clear warning about exposing people to the substances listed in the law.
Proposition 65 Introduction
Proposition 65 was initiated and is now administered by the Office of Environmental Health Hazard Assessment (OEHHA). The law passed by direct popular initiative in 1986. The purpose of the act introduction was to prevent businesses from exposing individuals to hazardous substances and to increase awareness of people about chemicals that may cause cancer and reproductive harm.
Prop 65 List of Chemicals
The list of chemicals falling within the scope of Proposition 65 was published for the first time on March 1st, 1987, and it is regularly managed and amended. The current version updated in September 2019 is available on the OEHHA website.
The list is based on the Labor Code that includes the WHO’s listings of chemicals recognized as causing cancer, birth defects, and reproductive harm. State’s Qualified Experts from the Developmental and Reproductive Toxicant Identification Committee (DARTIC) and the Carcinogen Identification Committee (CIC) also have the right to revise the list. As for September 2019, the list includes more than 800 chemicals.
Proposition 65 Revisions and Further Development
Proposition 65 was amended many times, which included minor revisions and significant changes. The series of general changes of Article 6 of the Act) on Prop 65 warnings were initiated for the first time in August 2016 and, then, amended in 2017 and in August 2018.
The commonly known as Prop 65 safe harbor warnings 2018, new regulations on warning labels, came into effect on August 30, 2018. These regulations gave guidance to retailers and manufacturers on how to label the products containing the substances listed in Proposition 65 and sites exposed to these chemicals. August 2018 amendments targeted online retailers as well. One of the purposes of the safe harbor warnings was to protect online retailers from private litigations that dramatically increased in 2016 and 2017 years. Previous readings were vaguely worded and only suggested retailers providing “clear and reasonable” warnings, which gave plaintiff lawyers a base for numerous claims incriminating a lack of warnings and “unclearness”.
Now the labeling standards are clearly defined: the warning should include a yellow and black triangle warning sign, the name of at least one chemical users of the product are exposed, and explanation that it “known to the State of California to cause cancer and birth defects or other reproductive harm”. On selling websites, the warning must be placed on the page of every product or appear when a user adds the product to a cart or checks out for payment.
The experts of Propositions 65 continue developing new amendments tailored for specific areas and products. In 2019, amendments on pesticide and rental vehicle warnings came into effect.
Effect of Prop 65 on Businesses
After the implementation of Proposition 65, many product formulations were changed to exclude the chemicals listed in the law, even in those cases when the levels of the specified substances do not exceed a safe limit. A large number of manufacturers have taken Prop 65 regulations responsibly and reduced the emission of hazardous substances without any legal enforcement.
Prop 65 warning requirements have resonated soundly not only in California but all over the U.S. The huge volume of work related to recognizing the chemical listed in the Proposition, reducing exposure of people to them, and providing warnings affected all the levels of businesses. Proposition 65 regulations apply not only to production and retail businesses but also to parking sites, residential properties, including rental sites, hotels, restaurants, and entertainment sites.
Giving tailored recommendations on Prop 65 has limited the responsibility of retailers to providing unified warnings, but, at the same time, it places a heavier demand on managing assortment and providing individual and more specified warnings on company websites. The indirect effect of Proposition 65 on businesses is that consumers become more aware of the abundance of hazardous and toxic chemicals around them and start looking for safer alternatives in case they are provided, which sets new goals for businesses that want to be competitive in the long-term perspective.
Challenges for Retailers, Manufacturers and Importers
The chemical industry and manufacturers of the raw materials are the first to be affected by Proposition 65, but, scratch the surface, and you will find no industry that is not involved. The food, drug, and both hardline and softline goods — all of them are subject to Prop 65 regulations as that contain many chemical compounds. The manufacturers are mostly concerned, as they initiate the chain from the product creating, and then the product starts its way to a consumer. For them, Prop 65 requirements might commence innovations and result in technology changes.
The main challenges for manufacturers are:
- To recognize if their raw materials contain chemicals on the Prop 65 list.
- To determine the daily exposure risk levels that the product can emit.
For retailers the challenges are:
- To find out which products in their range contain the listed chemicals.
- To clarify with the manufacturer if the levels of exposure are within the safe levels.
- To provide necessary warning labels (or website warning) for each product.
OEHHA has not only made the list of chemicals that are known to cause cancer and birth defects but also has developed safe harbor levels.
Safe Harbor Levels are the levels of exposure that do not cause significant risk. Products containing listed chemicals in the amount below the safe harbor levels do not require Prop 65 warnings. If the levels of exposure are higher than safe harbor levels but do not exceed Maximum Allowable Dose Levels, the product requires Prop 65 warning. If the levels of exposure are higher than Maximum Allowable Dose Levels, the product is prohibited to sell. For importers, obtaining the documents indicating the presence of the listed chemicals and levels of exposure from the countries that do not have similar regulations might be a challenge.
Complaints and Polemics on Prop 65
Despite its humane nature serving people’s protection and raising awareness, California Proposition 65 has many opponents. The American Chemistry Council (ACC) called Prop 65 ‘unmitigated disaster’ for creating fear and confusion among consumers and imposing an unnecessary economic burden. Karyn Schmidt, one of the directors of the ACC on regulatory and technical affairs, said after Prop 65 safe harbor warnings 2018 that it is to put the law to bed, as those products — mostly jewelry — that gave the start to Proposition 65 are reformulated long time ago, but currently claims of Proposition 65 are inappropriately applied to many food products, supplements, baby food, and even coffee.
The chemicals on the Prop 65 list are commonly used worldwide, and the levels of exposure indicated in the list as subjected to Prop 65 warnings questionably can cause cancer or birth defects. There were a few attempts to have Proposition 65 preempted by federal law, with the last preemption bill introduced in June 2018, but none of them was successful.
California Proposition 65 is blamed for “over-warning”. As there are no fees for excessive warnings, while the fee $2,500 due for every day of delay of the warning required, some businesses prefer to overdo rather than to fail with Prop 65 warning. This results in omnipresent yellow and black signs throughout the state. Prop 65 is a nurturing ground for private lawsuits that have the only purpose to fine violators for the sake of individual gain without any environmental benefits to the state of California.
Is California Proposition 65 Salvation or National Disaster?
The bottom line is that Proposition neither real benefit for the citizens of California, nor calamity. The law has a noble purpose to let people know the truth about the product they buy and services they use and make a conscious decision.
In the beginning, Proposition 65 demonstrated its accomplishment and helped to reduce the discharge of harmful substances into sources of drinking water. Now the law seems to many people redundant but it has been already changed the mindset of many people and switched California businesses to be more environmentally friendly.
In January 2019, New York State has announced a proposal of the Consumer Right to Know Act, the law that is similar to Proposition 65. California may soon no longer be the only state concerned about individual rights to know what they consume and exposed to.
