Prop. 65 Kit: Introduction

Posted: 15-Dec-2001; Updated: 13-Feb-2006

Innovative Approach

Proposition 65, a California ballot initiative enacted by a 2:1 popular vote in November 1986, relies on disclosure, rather than regulatory commands, to create what California's lead agency describes as "a market-based incentive" for manufacturers to remove listed chemicals from their products and for others to reduce or eliminate exposures to toxic chemicals.

Innovative features have led to major improvements (especially compared to federal law) but have also drawn opposition from the business community, which has repeatedly sought to have the state law overturned by federal preemption. (See Why Controversial? below)

Prop. 65 can be enforced either by public prosecutors or by citizen suits. The high likelihood of enforcement, along with a shift in the burden of proof on what constitutes a safe level of exposure to a known carcinogen or reproductive toxin, has stimulated widespread quiet compliance and has been admiringly described in the press as "legal judo [PDF]." California's Environmental Protection Agency summarized the law's accomplishments [pdf] after its first five years of experience.

The law does not apply to all chemicals, but only to those known to cause cancer or reproductive toxicity, as officially determined. (See List of Chemicals Covered.)

Why Controversial?

Continuing opposition from affected industries has kept Proposition 65 in controversy since its 1986 enactment (see historical chart). Predictions of negative consequences from the law have regularly been proven wrong but have not ceased (see Continuing Controversy).

Primary opposition has come from industries which have campaigned against Proposition 65 from the beginning, especially industries regulated by the U.S. Food and Drug Administration such as food, drug, cosmetic, and medical device manufacturers. In particular they are disturbed by Prop. 65's burden of proof; i.e., themselves having to know what the safety limits are for exposures to known carcinogens or known reproductive toxins in their products. This basis for opposition is difficult to explain to the public (e.g., "Why shouldn't a business that is exposing people to carcinogens, know how much of an exposure is too much?"). Political opposition therefore usually emerges in other forms.

Direct enforcement by citizen suit is another source of controversy, with opponents claiming abuse [PDF] by citizen enforcers.