Prop. 65 Kit: Continuing Controversy

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

The handful of open debates at the federal level, in both the White House and Congress, have produced explicit decisions to protect Prop. 65 against federal preemption (by both Republican [PDF] and Democratic [PDF] administrations and by a Republican Congress).The credibility of opponents' claims that Prop. 65 would have serious negative consequences has eroded over time, since 15 years of experience have shown otherwise.

No Lessening of Preemption Efforts

However, national business interest in overturning Prop. 65 remains strong, especially from FDA-regulated businesses. The latest bill to preempt Prop. 65, sponsored by the food industry, was introduced in Congress in August 2001. Rather than attempting to debate Prop. 65 on the merits, the recent trend has been toward "uniformity" proposals that do not mention Prop. 65 but target it clandestinely. California industry has been more accepting of the law (see Western States Petroleum Association position).

Food Industry Role

The food industry's continuing campaign against Prop. 65 is particularly hard to explain in terms of actual impact, since there are no Prop. 65-required warnings on food manufacturers products (i.e., no examples of "non-uniform" labels that could be used to make a case for federally imposed uniformity). The head of the industry's leading trade association, the Grocery Manufacturers of America, also testified in 1992 [PDF] that none of the industry's 15,000 separate products in grocery stores would require any Prop. 65 warning. In 1988 the Reagan White House [PDF] rejected the same association's "unrealistic" predictions of significant cost impacts on the food industry from Prop. 65; and no evidence of such costs has emerged since. Although it appears that food products can easily meet Prop. 65 standards and thus not have to warn, it is unknown whether this has required additional quality control by the industry or what it might have cost. (See GMA position.) The food industry also continues to pose scary enforcement scenarios (see below).

Embarrassment as Possible Motive for Preemption (FDA Context)

Some of Prop. 65's most dramatic successes in eliminating or reducing toxic chemical exposures have come with consumer products already supposed to be subject to regulation by the U.S. Food and Drug Administration (e.g., lead in china dishes, lead in calcium supplements  [PDF]). These successes could imply FDA failures (e.g., "Why hadn't these chemical risks already been taken care of by FDA?") or lack of industry diligence ("You were able to eliminate the problem quickly and easily in response to Prop. 65; why not beforehand?"). In some cases FDA has publicly admitted overlooking a problem until Prop. 65 brought it to light (e.g., calcium supplements [PDF]). One possible motive for trying to eliminate Prop. 65 might be to eliminate potential embarrassment, particularly for industries that have invested heavily in convincing the public that FDA regulation provides ironclad protection. (See GMA position.) 

Claims of Enforcement Abuse

As other claims of negative consequences have been proven wrong over time, opponents since 1997 have increasingly tried to make the case that Prop. 65's citizen-suit enforcement provision is being abused. The California Attorney General, who has primary enforcement authority, has assessed the issue of abusive enforcement (see testimony [PDF]) and has secured two amendments to Prop.65 to improve supervision over and integrity of citizen-suit enforcement.

The California Attorney General has also, on rare occasions, used his supervisory powers to discourage threatened enforcement action in situations where the lack of evidentiary basis and the potential for inappropriate tactical behavior are apparent (e.g., chocolate candy, just before Halloween). (See review [PDF] re: chocolate.)

Scary Enforcement Scenarios

From the beginning, opponents have been predicting disruptive Prop. 65 enforcement actions against common products such as (in chronological order, 1988 to 2001) ice cream, orange juice, alcoholic beverages, Vitamin A, hot dogs and other packaged meats, and chocolate. For varying reasons, none of these has come to pass. See recent example (chocolate, September 2001) discussed in previous paragraph.

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