Proposition 65: The Good, the Bad and the Ugly

One cannot travel very far in the Golden State without being bombarded with cancer warnings. Thanks to Proposition 65 (Prop 65), a 1986 voter-approved ballot initiative titled California’s Safe Drinking Water and Toxic Enforcement Act of 1986, it would seem that just about everything in California causes cancer, birth defects or other reproductive harm.

Well, get ready for even more warnings on even more food products.

On July 5, 2019 the Office Environmental Health Hazard Assessment (OEHHA) proposed modified amendments to Prop 65 that could dramatically increase the amount of warnings on food products.

The “Good”

The good news is, this is not the first time the agency has tried this. In 2015, OEHHA proposed four pre-regulatory proposals that would have substantially increased the amount of Proposition 65 warnings, increased frivolous “shakedown” lawsuits, and unjustifiably weakened the scientific basis for warning levels. These pre-regulatory proposals were in direct response to the now seminal Proposition 65 case, Environmental Law Foundation v. Beech-Nut Nutrition Corporation (2015), In Beechnut, the plaintiff alleged that defendants failed to provide a Proposition 65 warning regarding exposure to lead in certain baby foods, fruit juices and packaged fruit. Lead is not intentionally added by companies, but instead is found in trace levels in food products because of its presence in the environment. Defendants prevailed at trial by showing that the average consumer’s reasonably anticipated rate of exposure to lead in the products, when properly evaluated to account for non-daily consumption, did not exceed the “safe harbor” of 0.50 micrograms.

The first proposal would have significantly lowered the exposure level at which a warning is required for lead. The second proposal would have made exposure levels for certain toxicants a single-day limit. The third proposal would have mandated a specific type of statistical calculation, known as the “arithmetic mean.” The final proposal would have required all food products to have chemical concentrations be evaluated for each and every lot of finished product that leaves the processing facility.

The California Chamber of Commerce and a vast coalition of organizations and businesses successfully pushed back against the agency. In a favorable ruling for the CalChamber and the broader business community, an Alameda Superior Court judge denied an environmental group’s effort to rescind the longstanding Proposition 65 standard for lead, and that decision was later affirmed by the First District Court of Appeal.

OEHHA ultimately abandoned all four pre-regulatory proposals.

The “Bad”

Three years later, in the waning days of the Brown Administration, OEHHA reintroduced two of the four pre-regulatory proposals—the “arithmetic mean” proposal and the prohibition against averaging chemical concentrations across facilities—as formal rules subject to the Administrative Procedures Act.

Once again, CalChamber and its vast coalition of organizations and businesses engaged the agency and pushed back on the need for such changes to Prop 65. Ultimately, the agency abandoned the “arithmetic mean” proposal, likely because it would have been a disaster for businesses by allowing outliers to skew the mean, which in many cases, would result in the need to provide a warning when 85% of the population would not need one. Thus, this proposal substantially exacerbated the over-warning problem under Prop 65.

The “Ugly”

Unfortunately, although OEHHA announced on July 5, 2019 that the agency had abandoned the “arithmetic mean” proposal – a significant victory for the business community– the agency essentially is doubling down on its proposal prohibiting manufacturers from averaging concentration results across different facilities. What this means for businesses and consumers is that the over-warning problem under Prop 65 for food products is likely to get a lot worse. The heavy burden businesses already face when defending against Prop 65 bounty hunters will be substantially more difficult under a facility-by-facility approach. The CalChamber coalition is preparing comments pushing back against the modified proposal.

Comments are due August 5, 2019.

Adam Regele, Policy Advocate