Proposition 65: What, Why, and Issues

Prop 65 Chemicals: A Summary

The Proposition 65 ("Prop 65" or "Prop65") chemical landscape is in a perpetual state of flux, with over 900 chemicals under its scrutiny, continuously adapting to advancements and manufacturing changes and progress. The list undergoes revisions annually. With this, confusion ensues; here we'll summarize main components of Prop 65.

Defining Prop 65 Chemicals

According to Prop 65, a chemical is any substance known to cause cancer, birth defects, or reproductive harm.

These chemicals can originate from both man-made sources, such as diazoaminobenzene commonly found in cosmetics and food, and naturally occurring sources, like certain forms of arsenic present in soil.

Some chemicals, like benzene, straddle both categories, being both a man-made gasoline additive and a natural byproduct of forest fires.

Transparency and Product Labels

Prop 65's labeling requirements have evolved over time.

In the past, product labels didn't specify the chemicals that might be present.

However, in 2018, new regulations made it mandatory to include the chemical name in warning labels. This shift towards specificity empowers consumers to make more informed choices by providing a clear understanding of potential chemical exposures in products.

Labeling Issues with "Heavy Metals"

The concentration of heavy metals in a food product can fluctuate due to factors like geographic location, plant part harvested, and climate conditions. To ensure safety and quality, products are rigorously tested for heavy metals through independent third-party labs.

Importantly, the presence of lead or cadmium in these products is never the result of chemical fertilizers, pesticides, or any processes used in their manufacturing and packaging, underscoring the commitment to providing safe and healthy options.

The Genesis of Prop 65: A Legacy of Environmental Accountability

The origins of Prop 65 date back to the mid-1980s. California, in particular, was grappling with environmental concerns, including the designation of numerous active superfund sites for toxic waste disposal and groundwater contamination issues.

In response to public demands for accountability and protection, California introduced the "Safe Drinking Water and Toxic Enforcement Act" in 1986.

This legislation, known as Prop 65, marked a significant shift in the burden of proof, requiring companies to demonstrate the safety of their products and their effects:

It mandated both strict regulation of substances permitted in groundwater and the inclusion of warning labels on products or services that might expose consumers to any of hundreds of chemicals exceeding the state's newly established Safe Harbor levels.

Prop 65 Safe Harbor Levels: What Consumers Need to Know

Safe Harbor Levels in Prop 65:

Prop 65 consists of two key components:

"Safe Drinking Water," safeguarding groundwater from over 900 regulated chemicals, and the "Toxic Enforcement Act," which mandates warning labels on products surpassing specific safe harbor levels.

These levels are the following:

Reproductive Toxins: Set at one-thousandth of the amount proven to cause no reproductive harm.

Cancer Risk: Established to limit cancer cases to no more than one in 100,000 individuals over a 70-year lifetime of exposure.

Understanding the Safe Harbor Levels:

Safe harbor levels are calculated by examining scientific studies, often conducted on animals, to find the no-observed-effect-level (NOEL) and the lowest-observed-effect-level (LOEL).

If a NOEL isn't found, a conservative factor is applied to the LOEL. For reproductive toxins, the NOEL is then divided by 1,000 to determine the Maximum Allowable Dose Level (MADL).

For cancer warnings, the process involves complex mathematical models resulting in a No Significant Risk Level (NSRL). This is defined as the level at which no more than one in 100,000 people are at risk of developing cancer over a 70-year exposure period.

Implications for Consumers:

Prop 65 is a right-to-know law, informing consumers about potential exposure to specific chemicals. It doesn't make safety judgments. When assessing a product with a Prop 65 label, individuals should consider their health status, exposure sources, and comfort levels. Seek professional guidance if needed.

Prop 65 promotes transparency, encourages reduced chemical use, and empowers consumers to make informed choices.

Prop 65 Labels: Informative, But Not Safety Guarantees

Proposition 65 labels on food products do not necessarily indicate the food is unsafe. Instead, Prop 65 serves as a right-to-know law, aiming to provide consumers with information about chemical levels exceeding state-established thresholds.

Consumers are encouraged to consider their health, toxin exposure, and the specific chemicals involved to make informed decisions. In many cases, seeking additional information from the manufacturer is crucial to assess a product's safety.

Prop 65 warnings are set at levels significantly lower than what the FDA and EU deem unsafe. For instance, warnings about reproductive harm or birth defects are triggered at levels 1,000 times lower than established safe thresholds.

Evaluating the safety of a product with a Prop 65 label can be complex. The label doesn't disclose the amount of a chemical or its source, but new regulations require the specific chemical name to be listed. . . .

For example, a Halloween costume might carry a warning about chlorinated tris, a flame-retardant chemical also found in other products like furniture. The presence of a Prop 65 label signifies chemical exposure but not product safety assurance.

Similarly, organic herbal soap might list β-myrcene as the chemical, added to the Prop 65 list despite objections.

It's crucial to understand that Prop 65 primarily provides information on chemical exposure rather than safety assurance.

Some superfoods show the Prop 65 warnings due to trace amounts of heavy metals absorbed from organic soils, unrelated to farming or manufacturing practices. Independent labs ensure the safety and quality of these products through testing.

Does Prop65 affect me if i'm not a California resident?

If you're not a California resident, you might wonder whether Prop 65 affects you. The answer is a definite "yes."

Although Prop 65 warnings were once confined mainly to California, a 2018 California law mandated that all goods sold online to California residents, regardless of their location, comply with Prop 65.

This change had widespread consequences, leading some companies to halt sales to California, while others scrambled to update their labels, often adding warnings to all products, which sometimes perplexed customers outside California. Consequently, Prop 65 warnings can now be spotted across the nation.

Prop 65 is a right-to-know law and doesn't determine the safety of a product. The chemicals cited in these warnings can be either man-made or naturally occurring. To decipher a Prop 65 warning, start by checking the chemical name, researching its safety levels, and contacting the manufacturer to inquire about the chemical's presence in their product.

Before making a decision, consider your own health, overall chemical exposure, and the benefits of the product in question. Keep in mind that Prop 65 levels are set at 1/1,000th of what is deemed safe. For more information, consult our article on Safe Harbor levels.

Prop 65 Exemptions

Proposition 65, in effect since the late 1980s, has undergone continuous changes. It presently provides exemptions, including:

- Public water systems
- Government agencies (federal, state, local)
- Small businesses with under 10 employees
- Exposure to chemicals below set risk levels
- Chemical discharges not significantly affecting drinking water
- Naturally occurring chemicals in food

The last exemption allows food manufacturers to subtract naturally occurring chemicals from their total chemical content when assessing consumer risk. This exemption is beneficial, but proving natural occurrence is challenging. For instance, for heavy metals in soil-based or food processing practices like roasting coffee beans, proving natural occurrence involves providing local or regional data, which can be logistically and financially challenging.

Demonstrating that a chemical is naturally occurring due to food processing is also difficult. The coffee industry faced Prop 65 violations due to acrylamide in roasted coffee. After a lengthy legal battle, it was determined that acrylamide from roasting coffee beans is not carcinogenic to humans. This ruling took nine years, leading to settlements and legal fees for some defendants.

The exception for naturally occurring acrylamide in coffee hasn't been extended to other foods with acrylamide from processing. Manufacturers of various foods received Prop 65 violation notices in 2020, claiming acrylamide in their products required warning labels.

A proposed revision aims to establish low acrylamide concentration levels in foods. Manufacturers must prove quality control measures and growing practices to meet these criteria. Whether this revision benefits food manufacturers or proves more challenging than using Prop 65 warnings remains uncertain.

Prop 65 Enforcement: Balancing Consumer Protection and Legal Challenges

Prop 65 enforcement is characterized by a system that allows individuals to file lawsuits for violations in the name of consumer protection, creating a complex and even contentious landscape allowing individuals to file lawsuits in the name of consumer protection. . . .

While it has reduced harmful chemicals in various products, opportunistic lawsuits have proliferated, overshadowing the law's original intent. Settlement fees frequently go towards attorney fees, raising questions about the motivations behind some plaintiffs.

A hypothetical scenario involving a cacao company highlights how a minor Prop 65 violation can lead to substantial fines and attorney fees, forcing many companies to opt for settlements rather than protracted legal battles. . . .

Consider a hypothetical scenario featuring a cacao manufacturing company to illustrate how even a minor Prop 65 violation can result in significant fines and attorney fees, often prompting businesses to choose settlements over prolonged legal disputes.

Imagine a reputable cacao manufacturing company that specializes in organic, fair-trade products. They've been in the industry for years, maintaining a strong commitment to quality and transparency.

However, one day, they receive a Prop 65 violation notice, alleging that their cacao products contain trace amounts of a chemical exceeding California's Safe Harbor levels. The chemical in question, in this case, could be naturally occurring and might have been absorbed from the soil in which the cacao plants were grown.

Faced with the looming threat of expensive legal proceedings, the cacao company decides to enter into settlement negotiations. They agree to pay a substantial settlement amount to resolve the Prop 65 violation, despite their belief that their products are fundamentally safe for consumers. This scenario underscores how Prop 65 compliance and potential violations can significantly impact businesses, sometimes even driving them to shutter their doors forever due to legal costs and reputation downfall.

The rise in these lawsuits, often driven by individuals and law firms seeking financial gains, is a growing concern, leading to a significant increase in violation notices and substantial settlement fees.

While Prop 65 has indeed contributed to reducing harmful chemicals in various consumer products, its exploitation as a profit-making tool has become more prevalent over the years, overshadowing its original intent of safeguarding consumers.

Prop 65 reform efforts have attempted to curb these issues, but the problem persists, with a considerable portion of settlement fees going to attorney fees and questionable motivations behind some plaintiffs.

Overall, while Prop 65 serves a valuable purpose, its efficacy is marred by the proliferation of opportunistic lawsuits.

In a Nutshell: Prop 65 as a Right-to-Know Law

Prop 65, at its core, is a right-to-know law, dedicated to informing consumers about potential chemical exposures, not making safety determinations. The chemicals mentioned in warnings can originate from both synthetic and natural sources.

To decipher a Prop 65 warning, it's imperative to first check the chemical name, researching its safety levels, and reaching out to the manufacturer for clarification.

When making a decision, consumers should consider their health, overall chemical exposure, and the benefits of the product in question. It's vital to remember that Prop 65 levels are often set at 1/1,000th of what's considered safe.