As a Libertarian and an attorney practicing in Ventura County, David Laufer applies his pro-business, pro-consumer, sensible/limited-government principles to his work. California’s Proposition 65 law, The Safe Drinking Water and Toxic Enforcement Act, passed by voters in 1986 to protect customers, is the subject of Mr. Laufer’s solution-oriented article.
Prop 65 Enforcement
Every week we read about enforcement actions under Prop 65. This law requires businesses selling products to warn of chemicals that cause cancer and birth defects. The most recent targets of enforcement are Trader Joe’s, Target, Whole foods, 99 Ranch Market and others. They were sued by California’s Attorney General Kamala Harris for selling ginger and plum candy without posting a disclosure on the amount of lead in the products.
We are all familiar with the warnings Prop 65 requires. You read the warnings every time you pump gas, enter a hotel or parking lot or walk through any place of business. Toys, food, jewelry, furniture and everything that we touch, breathe and consume that exposes us to chemicals the State of California has identified that cause cancer and birth defects must have the warning.
Ironically, the vast majority of businesses being sued have not put the lead or other chemicals in the products. The industrial revolution was the cause of these chemicals in the environment. Why has California placed the burden and cost of clean up on businesses?
Assemblyman Mike Gatto of Silverlake introduced legislation to modify Prop 65. His bill would give businesses more time to remedy violations of Prop 65 and avoid penalties if they comply. The bill was watered down in committee. As changed, the bill only gives more time to restaurants, auto garages and bars. The change should apply to all businesses. Giving all businesses more time to correct deficiencies is good for the business, consumers and the environment. He points out that looking for new suppliers, better ingredients and the testing takes time. The additional clean up time will in any event be less than the time spent in prosecuting and defending the lawsuit. Lawyers and environmental groups have been opposed to giving businesses more time to comply and avoid penalties and legal fees because they felt opposition would lead to more changes to Prop 65.
Many critics of Prop 65 claim is it being abused by private bounty hunters. These groups have been created to enforce Prop 65 violations. The lawyers representing these private entities collected more than $9 million in legal fees and costs over the past 10 years. Prop 65 provides that the private enforcers are to receive only 25% of the fines and penalties, but that limit has been waived by the California Attorney General’s Office to encourage private settlements of the cases.
Prop 65 was a well intentioned law. Its goal of getting chemicals that cause cancer and birth defects identified and warning consumers how to avoid them is a good goal. The Center for Disease Control and Prevention said that even low amounts of lead in the blood may affect children’s brains. However, placing the cost of testing, warning and clean up on Trader Joe’s and others businesses is not fair. And more important, every time a case is filed under Prop 65, the legal fees paid to both sides, the penalties imposed and clean up costs incurred are passed on to consumers in higher prices for products. A better approach would be to give businesses more time to comply with notices of a violation. Waive all penalties for voluntary compliance with notices of violations. Apply uniform product and chemical testing standards for products on the State and Federal level so that California does not impose its standards on out-of-state businesses. And, let’s have government work with businesses to help clean up the chemicals that the industrial revolution placed in the environment. That is a win-win for consumers, businesses and the environment.