California Proposition 65 (1986)
Encyclopedia
Proposition 65 is a California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...

 law passed by direct voter initiative in 1986 by a 63%-37% margin. Its goals are to protect drinking water sources from toxic substances that cause cancer
Cancer
Cancer , known medically as a malignant neoplasm, is a large group of different diseases, all involving unregulated cell growth. In cancer, cells divide and grow uncontrollably, forming malignant tumors, and invade nearby parts of the body. The cancer may also spread to more distant parts of the...

 and birth defects and to reduce or eliminate exposures to those chemicals generally, for example in consumer products, by requiring warnings in advance of those exposures. It is administered by Cal/EPA's California Office of Environmental Health Hazard Assessment
California Office of Environmental Health Hazard Assessment
The Office of Environmental Health Hazard Assessment, commonly referred to as OEHHA , is a specialized department within the cabinet-level California Environmental Protection Agency with responsibility for evaluating health risks from environmental chemical contaminants.OEHHA is the scientific...

 (OEHHA). Proposition 65 regulates substances officially listed by California as causing cancer or birth defects or other reproductive harm in two ways. The first regulatory arm of Proposition 65 prohibits businesses from knowingly discharging listed substances into drinking water sources, or onto land where the substances can pass into drinking water sources. The second regulatory arm of Proposition 65 prohibits businesses from knowingly exposing individuals to listed substances without providing a clear and reasonable warning.

Since enactment, Proposition 65 has been the reason for reformulation of numerous consumer products to eliminate toxic chemicals covered by Proposition 65, as well as other significant changes to reduce exposures such as toxic air emissions. In some cases consumer products have been relabeled to show specific toxic ingredients, but reformulation has been far more common. An official list of covered substances is maintained and made publicly available. Entries are added or removed based on current scientific information. All substances listed show their known risk factors, a unique CAS
Chemical Abstracts Service
Chemical Abstracts is a periodical index that provides summaries and indexes of disclosures in recently published scientific documents. Approximately 8,000 journals, technical reports, dissertations, conference proceedings, and new books, in any of 50 languages, are monitored yearly, as are patent...

 chemical classification number
CAS registry number
CAS Registry Numbersare unique numerical identifiers assigned by the "Chemical Abstracts Service" toevery chemical described in the...

, the date they were listed, and, if so, whether they have been delisted.

Proposition 65 remained politically controversial for well over a decade after it passed, in large part because, in effect, it put the burden of proof on business instead of government to make a key scientific determination about safety levels for specific chemicals. This unique shift gave businesses an incentive to cooperate with government in setting exposure limits to specific chemicals. When the California Environmental Protection Agency conducted a five-year review of the law in 1992, it found that "By federal standards, Proposition 65 has resulted in 100 years of progress in the areas of hazard identification, risk assessment, and exposure assessment."

Rationale and enumerated rights

In addition to amending the California Health and Safety Code
California Health and Safety Code
California Law consists of 29 codes, covering various subject areas, the State Constitution and Statutes. The California Health and Safety Code is the code covering the subject areas of health and safety.-External links:...

, Proposition 65 contained the following language in the 1986 ballot initiative:

SECTION 1. The people of California find that hazardous chemicals pose a serious potential threat to their health and well-being, that state government agencies have failed to provide them with adequate protection, and that these failures have been serious enough to lead to investigations by federal agencies of the administration of California's toxic protection programs. The people therefore declare their rights:


(a) To protect themselves and the water they drink against chemicals that cause cancer, birth defects, or other reproductive harm.


(b) To be informed about exposures to chemicals that cause cancer, birth defects, or other reproductive harm.


(c) To secure strict enforcement of the laws controlling hazardous chemicals and deter actions that threaten public health and safety.


(d) To shift the cost of hazardous waste cleanups more onto offenders and less onto law-abiding citizens.


The people hereby enact the provisions of this initiative in furtherance of their rights.


The Legislature's 2003 amendments to Proposition 65 contained the statement that the changes "further the purposes of the Safe Drinking Water and Toxic Enforcement Act of 1986."

Enforcement

Enforcement is carried out through civil lawsuits
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...

 against Proposition 65 violators. These lawsuits may be brought by the California Attorney General
California Attorney General
The California Attorney General is the State Attorney General of California. The officer's duty is to ensure that "the laws of the state are uniformly and adequately enforced" The Attorney General carries out the responsibilities of the office through the California Department of Justice.The...

, any district attorney
District attorney
In many jurisdictions in the United States, a District Attorney is an elected or appointed government official who represents the government in the prosecution of criminal offenses. The district attorney is the highest officeholder in the jurisdiction's legal department and supervises a staff of...

, or certain city attorney
City attorney
A city attorney can be an elected or appointed position in city and municipal government in the United States. The city attorney is the attorney representing the city or municipality....

s (those in cities with a population exceeding 750,000). Lawsuits may also be brought by private parties "acting in the public interest," but only after providing notice of the alleged violation to the Attorney General, the appropriate district attorney and city attorney, and the business accused of the violation.

A Proposition 65 Notice of Violation must provide adequate information to allow the recipient to assess the nature of the alleged violation. A notice must comply with the information and procedural requirements specified in regulations. A private party may not pursue an enforcement action directly under Proposition 65 if one of the government officials noted above initiates an action within sixty days of the notice. After 2003, private enforcers must also serve a certificate of merit (statement of expert consultation(s) supporting belief of reasonable and meritorious private action) as a means of preventing frivolous enforcement actions.

A business found to be in violation of Proposition 65 is subject to civil penalties of up to $2,500 per day for each violation. In addition, the business may be ordered by a court of law to stop committing the violation. Other penalties may apply, including unfair business practices violations as limited under California Proposition 64 (2004)
California Proposition 64 (2004)
Proposition 64 was a California ballot proposition on the November 2, 2004 ballot. It passed with 6,571,694 votes in favor and 4,578,725 against...

.

The best solution for a business is to become compliant, by learning upfront whether or not their products contain chemicals that match the current Proposition 65 list of 840 chemicals. Users can do this by searching in a Microsoft Excel
Microsoft Excel
Microsoft Excel is a proprietary commercial spreadsheet application written and distributed by Microsoft for Microsoft Windows and Mac OS X. It features calculation, graphing tools, pivot tables, and a macro programming language called Visual Basic for Applications...

 chemical list or a website offering the search by chemical name or CAS Number. Product manufacturers may also learn if a chemical in their products has been removed from the Proposition 65 list, such as Saccharin, removed December 2010.

Warning label

The following warning language is standard on products sold in California if they contain chemicals on the Proposition 65 list and the amount of exposure caused by the product is not within defined safety limits.

WARNING: This product contains chemicals known to the State of California to cause cancer
Cancer
Cancer , known medically as a malignant neoplasm, is a large group of different diseases, all involving unregulated cell growth. In cancer, cells divide and grow uncontrollably, forming malignant tumors, and invade nearby parts of the body. The cancer may also spread to more distant parts of the...

 and birth defect
Congenital disorder
A congenital disorder, or congenital disease, is a condition existing at birth and often before birth, or that develops during the first month of life , regardless of causation...

s or other reproductive harm.


The wording can be changed as necessary, so long as it communicates that the chemical in question is known to the state to cause cancer, or birth defects or other reproductive harm. For exposures from other sources, such as car exhaust in a parking garage, a standard sign might read: "This area contains chemicals known to the State of California to cause cancer, or birth defects or other reproductive harm" .

Some businesses in the state post similar notices on their premises, even when they have not evaluated the actual level of risk from a listed chemical they know is present. Warning signs are often posted at gas stations, hardware suppliers, grocery stores, drug stores, medical facilities, and many other businesses. Government agencies, parking garages, hotels, apartment complexes, retail stores, banks, and restaurants also post warning signs because of the possibility of hazardous chemicals being present in everyday items or the nearby environment. Some large businesses, such as utility companies, mail a Prop 65 notice to all customers each year to warn them of dangerous substances like natural gas or the sand used in sandblasting.

There is no penalty for posting an unnecessary warning sign. Because of the overuse of the vague warning, the ubiquitous signs ultimately communicate very little information to the end user. This problem has been recognized by California courts, advocates, and businesses.

Abuse

Political controversy over the law, including industry attempts to have it preempted by federal law, have died down. However, enforcement actions remain controversial. Most of the Proposition 65 complaints are filed on behalf of straw man plaintiffs by private attorneys, some of whose businesses are built entirely on filing Proposition 65 lawsuits.

Labeling requirements conceded the reality that listing and classifying substances did not help the consumer if the contents of a purchase were unknown. At the same time, there were no other labeling requirements to support the proposition. Industry critics and corporate defense lawyers charge that Proposition 65 is "a clever and irritating mechanism used by litigious NGO
Non-governmental organization
A non-governmental organization is a legally constituted organization created by natural or legal persons that operates independently from any government. The term originated from the United Nations , and is normally used to refer to organizations that do not form part of the government and are...

s and others to publicly spank politically incorrect opponents ranging from the American gun industry to seafood retailers, etc."

In addition, because the law allows private citizens to sue and collect damages from any business violating the law, there have been cases of lawyers and law firms using Proposition 65 to force monetary settlements out of California businesses. The Attorney General's office has cited several instances of settlements where plaintiff attorneys received significant awards without providing for environmental benefit to the people of California, resulting in the requirement of the Attorney General's approval of pre-trial Proposition 65 settlements. The Attorney General also objected to efforts in settlements between private parties to pre-empt the Attorney General's right and duty to protect the public interest
Public interest
The public interest refers to the "common well-being" or "general welfare." The public interest is central to policy debates, politics, democracy and the nature of government itself...

 against future violations.

See also

  • California ballot proposition
    California ballot proposition
    In California, a ballot proposition is a proposed law that is submitted to the electorate for approval in a direct vote . It may take the form of a constitutional amendment or an ordinary statute. A ballot proposition may be proposed by the State Legislature or by a petition signed by members of...

  • Environmentalism
    Environmentalism
    Environmentalism is a broad philosophy, ideology and social movement regarding concerns for environmental conservation and improvement of the health of the environment, particularly as the measure for this health seeks to incorporate the concerns of non-human elements...

  • Toxicity
    Toxicity
    Toxicity is the degree to which a substance can damage a living or non-living organisms. Toxicity can refer to the effect on a whole organism, such as an animal, bacterium, or plant, as well as the effect on a substructure of the organism, such as a cell or an organ , such as the liver...

  • Pollution
    Pollution
    Pollution is the introduction of contaminants into a natural environment that causes instability, disorder, harm or discomfort to the ecosystem i.e. physical systems or living organisms. Pollution can take the form of chemical substances or energy, such as noise, heat or light...


External links

The source of this article is wikipedia, the free encyclopedia.  The text of this article is licensed under the GFDL.
 
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