This column by Vineet Dubey, co-founding partner of Custodio & Dubey LLP, recently featured in Bloomberg Law, focused on the role Proposition 65, the Safe Drinking Water and Toxic Enforcement Act, has played in protecting Americans since 1986. This is a shortened version, reprinted with permission. For the full column, go to https://news.bloomberglaw.com.
California’s Proposition 65 Continues to Save Lives 35 Years Later
Thirty-five years ago, California voters approved a law that fundamentally changed the consumer safety landscape in this country. Proposition 65, the Safe Drinking Water and Toxic Enforcement Act, adopted on Nov. 8, 1986, has become both famous and infamous, not just in the Golden State but around the world.
We’ve all seen the ubiquitous warning labels on everything from nori seaweed to bathing suits. Proposition 65 is a well-worn punchline and punching bag for its critics. Even the state agency responsible for overseeing Proposition 65, the Office of Environmental Health Hazard Assessment (OEHHA), has reportedly acknowledged a “white noise” effect of overwarning consumers.
But the law did exactly what it was intended to do. It checked corporate behavior and made consumers safer. The results haven’t just helped California consumers. People across the country also benefit, as the law in the country’s largest market forced a known carcinogen out of a soft drink’s secret formula.
Changes in Proposition 65 Since Adoption
Like every transformative law, Proposition 65 has undergone considerable change since it was adopted. In the past few years, the labeling requirements have changed so that consumers must be notified of specific chemicals in products, as opposed to general blanket warning labels.
This change was a good step, but more changes would add strength and accountability, such as establishing and codifying exposure time frames—daily for items such as baby food; weekly, monthly, or even yearly for other items.
Manufacturers also should be required to test their products or provide independent lab reports before putting them on the market. The basic process is, however, sound: OEHHA’s list undergoes a thorough and rigorous annual review, with a public comment period, and compliance guidelines are clear and accessible.
To those who question the law’s continued value, I would say that it would be incredibly short-sighted to throw out the baby with the—now detoxified—bathwater. I have spent more than a decade in the Proposition 65 trenches and have personally witnessed the impact and life-saving import of the law on consumers.
Proposition 65 and Federal Law
Under federal laws, the government cannot limit a chemical unless it has decided it is an affirmative hazard. Under Proposition 65, the presumption of guilt is completely flipped. The onus is on companies to prove that a warning label isn’t required because the level of lead in baby food is so low that it is not a hazard.
The FDA is finally taking action on lead levels, but its proposed standards aren’t expected to be implemented until 2024, far too late for babies ingesting heavy metals right now. Without the standards and enforcement mechanisms created under Prop. 65, Gerber and others could have eluded accountability for many more years.
Proposition 65 may have been the first comprehensive effort to hold companies accountable for what they put into their products, but it won’t be the last. Similar legal efforts are occurring in other states, and companies with national and international distribution channels generally have shown a willingness to do the right thing for their consumers. In an increasingly chemical world, Prop. 65’s mission could be even more critical today than when it was first enacted.
