Welcome to Laboratories of Democracy, a series for Vox’s The Highlight, where we examine local policies and their impacts.
The policy: Chemical warning labels on products, better known as Proposition 65
Where: California
Since: 1988
The problem:
If you’ve gone shopping lately, you may have seen a creeping number of warning labels affixed to faux leather jackets, jewelry, even bathing suits. These labels, which ominously suggest that the product could give you cancer, all trace back to a single California law: Proposition 65.
A shift began in the late 1960s, when a series of oil spills changed how California discussed water contamination. In 1968, when a corporate leak into the Dominguez Channel provoked a meager $100 fine, the Los Angeles Times complained that the state was “in serious danger of losing the fight against pollution of its irreplaceable water resources.”
Three years later, just as the newly formed EPA was sanctioning Atlanta, Detroit, and Cleveland for letting companies pollute their water supplies, California was hit with news that land in some counties was contaminated with 720 pounds of nitrate per acre, and any of it could slip into the drinking-water supply. In 1984, state officials discovered that solvents resulting from runoff electronics products had contaminated the groundwater in Silicon Valley.
The disclosures shook the state. In a 1986 LA Times poll, about 40 percent of Californians said they avoided tap water, many “out of concern for their health,” and California lawmakers worried that the EPA’s approach — which took an “innocent until proven guilty” approach to alleged polluters — was not proactive enough.
Environmental watchdogs had fought for years to shift the burden of proof for toxic contamination onto companies. After industry lobbying stymied their efforts, they took it to the ballot: They introduced legislation known as Proposition 65, which would require companies warn consumers of potentially toxic chemicals in their products via a prominent label; it went up for a public vote as the Safe Drinking Water and Toxic Enforcement Act in 1986.
Actress Jane Fonda was one of the earliest supporters, and she and other Hollywood celebrities, such as Chevy Chase, Shelley Duvall, Rob Lowe, Cher, and Whoopi Goldberg crisscrossed the state to advocate for Prop 65 in buses they dubbed “clean water caravans.” Fonda told a crowd, “I want to be able to drink the water without risking my life or the life of my children.”
But the initial selling point of Prop 65 — that it would eliminate toxins in the water supply by holding big business liable for its leaks — has largely been forgotten in 2019. These days, the law is better known for requiring eyebrow-raising warning labels on everything from bread to steering wheel covers to — briefly — Starbucks coffee, and it has turned into a national punchline.
This idea that companies should be liable for what’s in their products has made business groups uneasy for decades. In the campaign for Prop 65, gas companies such as Chevron and Shell spent four times more than organizations supporting the measure, and still lost the vote 37 percent to 63 percent.
The law — which took effect in 1988 — was a big win for environmental activists. One hundred seventy-eight chemicals linked to cancer or birth defects, which ran the gamut from lead to ethyl alcohol, suddenly required labeling. Companies that failed could pay up to $2,500 a day in fines.
Rather than let companies assume their products were safe, Prop 65 forced them to prove it. And, in a radical move, lawmakers hoped that regular people — or, at the very least, environmental experts — would be the ones to blow the whistle. Instead, they left open a loophole that has stripped the luster from one of the most ambitious health laws in the nation.
How it worked:
The Prop 65 warning labels were intended to push companies to reformulate their products. “The ideal number of warnings is no warnings, because the ideal reaction is that businesses get rid of exposures to toxic chemicals,” says David Roe, a former lawyer for the Environmental Defense Fund and the primary author of Prop 65.
In 1995, for instance, a Prop 65 lawsuit pushed eight major faucet brands to significantly reduce the amount of lead that slipped into the tap. More quietly, the law has led to reformulations in everything from water filters to baby powders to hair dyes. (Because of California’s size, those reformulations benefit people across the US.) Few of these changes have been publicized, Roe says, because “nobody ever issues a press release that says, ‘We used to be exposing you to a chemical that causes cancer, and we just stopped.’”
Environmentalists across the state made similar impressions. When Deborah Ann Sivas started filing lawsuits under Proposition 65, she couldn’t believe her luck. After a decade of working as an environmental lawyer, she was landing meetings with multinational corporations who suddenly seemed afraid of her.
“Some companies dug in their heels and said, ‘This is outrageous, we’re going to fight this,” says Sivas. “But others came to the table and had serious conversations about reformulating their products.”
In the late 1990s, Sivas scored million-dollar settlements with Rite Aid and Costco for failing to warn about the dangers of tobacco smoke, tattoo shops for not mentioning the presence of lead and mercury in some red inks that pregnant women specifically should avoid, and personal hygiene brands such as Colgate and Oral-B for lead in some toothpaste products. For its efforts, Sivas’s nonprofit the American Environmental Safety Institute earned a cut — around $355,000 in 2004.
To Sivas, the money wasn’t the point. “Our focus was, ‘How can we negotiate to get bad stuff off the market?’” she says. The settlements Sivas’s organization received under the law were donated to children’s health organizations.
“But even then,” Sivas says, “there were attorneys popping up who were beginning to be perceived as shakedown artists.”
Where the authors of Prop 65 saw a radical way to hold companies accountable for their products, a small group of private enforcers pinpointed an opportunity. By 1998, a crop of private enforcers began targeting small companies just barely outside the bounds of the law in what one business journal called a “high-volume, settle-and-run tactic.”
It has increasingly become big business. Unlike Sivas, some of the most successful private enforcers are law firms that make use of a provision in Prop 65 allowing California residents to file actions against companies for the public good. Last year, one of these firms — the Chanler Group — was paid $3,096,725 in attorney fees from Prop 65 lawsuits that used a combination of eight individual plaintiffs. Another firm, Brodsky & Smith, received $2,660,850 in attorney fees. (Neither the Chanler Group or Brodsky Smith replied to requests for comment.)
Because of a relatively small number of lawyers, warning labels have blanketed California department stores, appending everything from kitty litter to play sand. Since Prop 65 covers online sales, the labels turn up far outside California. As economist Michael L. Marlow notes, an individual hotel that attempts to comply with Prop 65 must include warnings for everything from cleaning supplies used during maid services to swimming pools, soap, shampoo, and office supplies.
“Every dry cleaner, every restaurant you walk in has a Prop 65 warning in the window,” says Tom Houston, who helped draft the initial bill as chief deputy to then-Los Angeles Mayor Tom Bradley. “Everybody just ignores that. The major purposes have all been established. The major bad chemicals are off the market, the major bad actors have been corralled by the initiative. Now this is getting down to be almost ridiculous.”
The reason, in part, is that Prop 65 sets very low thresholds for warnings. For birth defects, warnings are required at one-thousandth of the level at which a certain chemical is shown to cause birth defects. With a carcinogen such as lead, it is a maximum of 0.5 micrograms/liter of lead per day, which is below the amount of lead in the average serving size of the majority of balsamic vinegars. (The warning levels for cancer contain a slightly different, but similarly stringent, standard.)
So some of the now nearly 1,000 chemicals on the Prop 65 list — such as benzene — have a scientific consensus as hazards, making enforcement of warning labels for them especially urgent, while others show tenuous evidence of carcinogenic properties in humans.
Acrylamide, for instance, was added in 1990 after studies in rats linked it to cancer. This chemical — which appears during the process of frying or roasting — has led to cancer warnings on everything from coffee to prune juice in California. But the American Cancer Society notes that there is no connection between acrylamide and cancer, and the FDA writes that “it isn’t feasible to completely eliminate acrylamide from one’s diet … Nor is it necessary.”
Acrylamide lay at the heart of a notorious recent Prop 65 case, a lawsuit against Starbucks, 7-Eleven, and others that led to a brief period in which all coffee vendors in California were required to post cancer warnings on coffee cups. (In June, the California office that oversees Prop 65 carved out an exemption for coffee.)
Yet it is hard to dispute that some of these “predatory” lawsuits are upholding the aims of Prop 65. In 2018, they resulted in reformulations to reduce lead levels in a variety of food products. Although many of these products were only slightly over the permissible limit to begin with, less lead in a product is not a bad thing. “Since Prop 65 only requires that the consumer be alerted, it serves quite a different function than FDA’s limit,” says Tom Neltner, a lead expert at the Environmental Defense Fund. “Having more than 0.5 microgram per day in a single serving of food is significant.”
Some of these contradictions seem to be in the DNA of the law. In 2007, then-Attorney General Jerry Brown wrote to Prop 65 lawyer Clifford Chanler of the Chanler Group to complain that “your manner of pursuing [Prop 65 cases] does not appear to be in the public interest.” Chanler, according to Brown, has “collected significant sums of money” and his attorney fees “exceed a reasonable amount.” But even Brown prefaced his letter by noting that, while Chanler has reaped significant profits, he has also identified “lead exposures that exceed Proposition 65 standards.” Those exposures, Brown said, “need to be corrected.”
“I don’t like some of the people who have made careers out of this,” Roe tells me. “But how do you or I decide who’s being sufficiently civic-minded?”
Some politicians have fought hard to curb Prop 65’s unchecked private enforcement. In 2013, California State Assembly member Mike Gatto championed a bill called AB 227 that gives businesses a 14-day period to correct their product before a private enforcer can take them to court. Gatto’s amendment was one of several recent efforts to legislate around Prop 65, including a bill in the US House that — rather than amend Prop 65 — would essentially repeal it nationally. That failed repeal effort was funded largely by big business groups.
And for all its benefits, Prop 65 has not curbed some of California’s most persistent problems around drinking water contamination.
“Where the drinking water is a problem is in rural areas,” Sivas says, as people often rely on wells that don’t face the same regulations as urban and suburban taps. Nearly 1 million Californians, many of them farmers in communities of color, lack access to clean water.
“The question Prop 65 poses is, ‘Who do you go after?’” says Sivas. But these contaminations are more systemic — driven by fractional infrastructure spending in rural communities and the encroachment of nitrates found in chemical fertilizers — and lack an easy company to prosecute. “No one has really harnessed Prop 65 to impact that.”
Michael Waters is a freelance journalist covering the oddities of politics and economics. His work has appeared in the Atlantic, Gizmodo, BuzzFeed, and the Outline.