As California environmental regulators prepare to review Proposition 65 additions, concerns persist about the impact of such labels on items without clear evidence they are harmful, and the torrent of related litigation that threatens to shut down businesses.
Without a law requiring due diligence, Prop 65 labels had been placed on coffee and bread.
The California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (OEHHA), which oversees Prop 65, is now taking public comments on what is under consideration, Victor Gómez, executive director of California Citizens Against Lawsuit Abuse (CALA) told the Northern California Record by email.
“For the most part, these proposed regulations refer to the requirement from California’s 1986 Proposition 65 that businesses or products which contain certain chemicals— even those in nearly undetectable amounts and without evidence that they’ve harmed anyone— display printed warnings,” Gómez said. “By adding new chemicals to the list, these regulations could potentially increase the number of warning labels or signs which are required to be provided."
Since Prop 65 is primarily enforced through private lawsuits, adding new listings likely means that even more new lawsuits can reasonably be expected, Gómez said.
“But California has become the laughingstock of other states and countries by blindly adhering to a draconian arrangement approved by voters in 1986 which has resulted in many everyday, common household products being required to bear warning labels, even though there is no evidence that anyone has ever been harmed by them, or potentially could be,” Gómez said.
“By way of example, many are aware that coffee contains acrylamide— an ingredient which was on the list of substances which required a Prop 65 warning label— so many coffee shops quickly posted notices while others faced costly claims and lawsuits.
"While California eventually withdrew the requirement for coffee to provide Prop 65 warnings (largely out of embarrassment), this shows how normally harmless substances can arbitrarily turn up on the list— was there ever any evidence that coffee actually harmed anyone, or could even do that?
"Similarly, heating starches such as bread and potatoes also produce acrylamide, so bread manufacturers, bakeries, grocery stores and other vendors became yet another target of Prop 65 claims. Vitamin A is found in many vegetables and is essential to good health; but because almost anything can be toxic in large enough quantities, it is also on the Prop 65 list (along with about 1,000 other substances). Lead has also been found even in many completely organic vegetables because volcanic eruptions left metals in the soil— just because modern technology now allows for much smaller amounts of substances to be detected does not relieve us of the commonsense obligation to ask whether they are actually dangerous, or should be penalized.”
The lion’s share of Prop 65 penalties goes to attorneys’ fees, Bloomberg reported.
“If a business or product has a substance on the list, it can be often necessary to incur up to $1 million or more in legal and expert expense to prove that the product is safe to win a Prop 65 lawsuit— because of this, many opportunistic attorneys will refuse to settle these cases if they are not paid tens of thousands of dollars (often $60-80k), even if they can’t produce a plaintiff who has actually been harmed, or evidence that someone could be,” Gómez said.
“Because the number of these suits is skyrocketing, consumers should be concerned every time a new substance is added to the Prop 65 list, because these lawsuits cause us all to pay higher prices in these difficult economic times.”
As just one possible example, the Office of Environmental Health Hazard Assessment (OEHHA) is holding a Dec. 14 meeting to consider whether Bisphenol A should be added to the list of carcinogenic chemicals which require warning notices, but written opposition to that measure would need to be submitted by Nov. 14, Gómez said.
“As the hazard identification document entitled ‘Evidence on the Carcinogenicity of Bisphenol A’ is now available for public review and comment, it’s reasonable to assume that if appropriate evidence is not received to the contrary, Bisphenol A may well be added to the list, and the same general arrangement would apply to the other chemicals which are currently being considered for addition, though different deadlines might potentially apply for each.”
Gov. Jerry Brown signed legislation nine years ago that was supposed to curb runaway Prop 65 lawsuits but Gov. Gavin Newsom hasn’t passed other reforms even as thousands of notices continue.
“If the attorneys in these cases were representing plaintiffs who had actually been injured or harmed by the products, people might be able to understand how it is fair for them to recover tens of thousands (if not millions) of dollars in settlements— but because these lawsuits relate solely to warnings for products which have never been shown to be dangerous, Californians should rethink arrangements which essentially ‘deputize’ private attorneys and litigants by allowing them to act almost as government prosecutors when so little public benefit has been shown after decades of litigation,” Gómez said.
While a portion of the settlement proceeds in these cases goes to the State of California, many question whether it is appropriate for a state to derive significant gain from penalties, Gómez said.
“When the overwhelming number of products which have been the subject of these lawsuits over the years have never been shown to cause any harm, and are still on the market today,” Gómez said. “If an attorney could show that a dangerous product was taken out of circulation as a result of one of these lawsuits, the recovery of fees in such a case might seem more justified.”
A new report by the Hoover Institution describes how litigation costs are contributing to an escalating number of businesses leaving California for other states.
Taxpayers should also object to already overburdened courts and government offices spending time on matters which yield so little public benefit, Gómez said.
In California, there is no mechanism to ensure that an attorney’s money demands will not force a business to close, and even those which don’t often have little choice but to pass on litigation defense costs to consumers through higher prices or job cuts— it is imperative that California ensure that if hundreds of new lawsuits are to be advanced in the name of public protection, a very clear public benefit can be identified which cannot be achieved through less onerous, costly means, he added.
“There is every reason to think that by adding additional chemicals to California’s Prop 65 list more of these lawsuits will be filed; most people think that products which can actually harm you— arguably things like tobacco, fireworks, lye, etc.— should carry an appropriate warning label. But public outrage has arisen with the direction Prop 65 cases have taken, in that in the more than 35 years since this law passed, enterprising lawyers have made millions filing lawsuits about warning notices on products which in all that time have never been shown to have actually harmed anyone. In just one recent year, in- and out-of-court settlements are believed to have exceeded $25 million in these cases— the total amount since Prop 65 was passed more than 35 years ago defies calculation.
“California has people sleeping on the streets and can’t provide enough water for many who desperately need it. While Prop 65 undeniably achieved a number of important results in its earlier years, many are concerned that more recent litigation has yielded far less significant— if any— public benefit. There are certainly far less costly ways with current technology to ensure that any businesses or products which should display warning notices have them.
“Ask your legislators to pass a law which requires courts to do a common sense, up-front assessment of whether there is evidence that a product, if used as directed, could realistically harm anyone before a Prop 65 lawsuit is allowed to proceed,” Gómez said. “Did you stop eating bread or drinking coffee during the time Prop 65 required warning notices for them? Were the lawsuits which were filed— urging courts to require businesses that sold such products to provide appropriate warnings— a good use of court time, tax dollars, or defendants’ money? Do you feel that those lawsuits protected you? If a business closed, cut jobs, or raised prices to offset the expense of dealing with the coffee or bread claims, would that be worth it to you? How many more products which are as safe as coffee, bread and vegetables are required to bear these warning labels?”
Gómez noted that every year in Sacramento, new bills are proposed which would allow private citizens to sue businesses with new claims based on some claim of public benefit.
“This is called a ‘private right of action,’” Gómez said. “Voters should be skeptical of authorizing new claims which allow any member of the public to step forward to advance litigation claimed to be in the public interest. One estimate is that approximately 87% of the settlements in these cases go to the attorneys— when a significant public benefit is not apparent, the expression ‘follow the money’ may show the strongest motivation behind these claims.”
A state appellate court last week upheld a trial court’s grant of summary judgment to coffee retailers sued under Prop 65.