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PROPOSITION 65: WHEN NOT BEING ON THE LIST IS A GOOD THING

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Imagine a law designed to enable citizens to make informed decisions about their exposures to cancer (or causing birth defects or other reproductive harm) causing chemicals in the products they buy, or use in their homes and workplaces, or public places that they visit. Informed decisions based on a sign or product label that explicitly includes language identifying at least one of the chemicals and the phrase “known to the state to cause [cancer] [birth defects or other reproductive harm].

Such signs or products would likely be expected when purchasing certain chemical products or entering a chemical facility. But what about a coffee shop? Or buying “all-natural” products? Or even going to the “happiest-place-on-earth” Disneyland?

What was once a ballot initiative with good intentions has now devolved into a legal and bureaucratic quagmire.

Initially under Proposition 65, the Attorney General was supposed to prosecute those individuals and companies who failed to properly label or warn Californians about the presence of certain chemicals. Known as the “Proposition 65 list” – there are now approximately 1000 “naturally occurring and synthetic chemicals” included on the list. A recent addition to the list is acrylamide, which can naturally be found in certain foods such as french fries, breads, prune juice, and coffee.

Based on the sheer number of listed chemicals, such Proposition 65 warnings have become ubiquitous to the point where the words have lost their meaning, even with the recent modifications to Proposition 65 requiring the inclusion of at least one of the listed chemicals. In other words, such signs and warnings have become so commonplace that they are simply being ignored.

Moreover, a few attorneys have been able to take advantage of Proposition 65, netting them “hundreds of millions of dollars” according to a recent article by Geoffrey Mohan of the Los Angeles Times. Proposition 65 contains a private enforcement clause that allows attorneys to step into the shoes of the Attorney General or district attorney if either chooses to not go after those who fail to comply with Proposition 65. In exchange, these attorneys are entitled to recover certain fees and monetary penalties. However, rather than go after industrial polluters, these attorneys go after the low hanging fruit – smaller business owners.

Under the private enforcement provision, notifications are sent to the business owners for alleged violations of Proposition 65. The business owners are then faced with a Sophie’s choice – spend potentially a lot of money fighting these attorneys or spend a little less and settle. Or, there is another choice: to not do business at all in California. As the Los Angeles Times article notes: “Litigating Proposition 65 enforcement has cost businesses more than $370 million in settlements since 2000, according to the state. New labeling requirements alone are expected to cost California companies between $410 million and $818 million over the next decade, the California Chamber of Commerce estimates.”

There is light at the end of the tunnel however for small business owners. Assembly Bill 2849, which was introduced earlier this year, proposes to amend Proposition 65 so that business employment fewer than 10 employees may be exempt. The California Assembly approved AB-2849 and is currently the California Senate. If approved by the senate and signed into law by the Governor, then the bill will likely go into effect on the first day of January of the next year.