Why BPA (And Other Chemicals) Don’t Belong On Proposition 65

If you want to have fun in California’s Disneyland, avoid reading the warning signs saying that products used in the park may give you cancer and reproductive problems! They’re not just a buzz kill, they are plain dumb and misinformed. But it’s state law that they be there. You can find them in Starbucks and many other places throughout the state too.

California’s nonsensical Proposition 65 law directs regulators to place chemicals on a “toxic” substances list, and then forces companies to issue warning labels when they use these substances to make consumer products and food. But regulators list chemicals for myriad stupid reasons. For example, they may list a chemical simply because high doses give cancer to rats, which is also true of broccoli. It’s the dose that makes the poison, which is one reason that such rodent tests have little relevance to health impacts in humans.

If the logic behind is law were correct, you might worry about keeping a nickle in your pocket since California lists nickel as a toxic substance. It’s not clear why the federal government does not have to post warning labels on nickles. I guess the feds are exempt from state-level idiocy?

As I noted on the Independent Women’s Forum Inkwell blog yesterday, one chemical, bisphenol A (BPA), has recently gained a temporary — hopefully soon-to-be-permanent — stay from listing on the Proposition 65 list. This case raises questions about the thousands of other chemicals found on this list. Had industry fought as hard as the American Chemistry Council is currently doing for BPA, would fewer chemicals be on this list? Maybe so. After all, at existing exposures, none of these chemicals pose much of any risks.

Consumers should understand that the underlying concept behind this “toxic” chemicals list is highly flawed because the exposures of the chemicals it condemns are too low to matter, and they have already passed many other government safety tests and regulations. Unfortunately, these warning labels are designed to instill fear in everyone from ma to grandma. After all, how could anyone give their kids something bearing such cancer-warning labels? Californians do just that, because the prevalence of these labels render their warnings meaningless and unavoidable.

While listing chemicals and alerting people to their existence at inconsequential trace levels provides no public health value, it does pay off for a few groups.

First, Proposition 65 has proven to be an environmental lawyer’s get-rich-quick program. The law allows citizens to bring lawsuits against companies that are out of compliance with the law’s intense reporting mandates, which happens sometimes because the companies are unaware of the law’s applicability to them. Proposition 65 also allows law firms to collect the costs of litigation should they prevail against companies. These factors have created a system whereby private parties have essentially become “bounty hunters,” searching down violators and then working with law firms to get rich off of settlements with out-of-compliance businesses that are simply trying to remain afloat.

A study on the topic explains:mcD_prop65

California’s Proposition 65, and particularly its private party enforcement, or “bounty hunter” provisions, have created a massive, expensive, baffling headache for companies doing business in California in the past twenty years. The law requires meaningless warnings of chemical exposures which often pose no real risk. Simultaneously, the law creates a system for relieving defendants — particularly out-of-state companies — of large amounts of money.

Worse, lawyers who “defend” clients in Proposition 65 litigation often don’t defend anyone — Proposition 65 has become an enormous money machine for the attorneys representing both sides. Cases almost never make it to court, and the lawyers in the “Proposition 65 bar,” who deal with each other every day, routinely settle five-and six-figure cases at the expense of businesses all over the country. Welcome to California. Bring your checkbook.

To companies from out of state, the scenario is usually like this: One day, out of nowhere, you get a letter from a law firm you’ve never heard of. The letter informs you that (a) A product you import, manufacture, provide parts for or sell causes cancer and/or birth defects; (b) You’re going to be sued in 60 days; and (c) there’s a number you can call to discuss settlement. Sound familiar? We thought so. A Proposition 65 bounty hunter has just cornered you. After reviewing your options, consulting with your attorneys, and learning a lot about a law you didn’t even know existed, it looks like you don’t have much choice. One way or another, if you want to keep doing business in this state, it’s going to cost you.

prop65 boots For the company’s explanation of this warning on their products (boots), see here.

Second, all the hype about “listed” and “toxic” chemicals makes for good environmental-activist-direct-mail campaigns and their efforts to push even more dumb laws. In fact, California decided that it needed to do more to “protect” unsuspecting consumers from “involuntary” chemical exposures. In 2009, the legislature passed the “Green Chemistry Initiative,” which moves the debate from disclosure to product redesign. The California Environmental Protection Agency’s Department of Toxic Substances Control (DTSC) is in charge of implementing the new law. Specifically, it is charged with developing a list of “chemicals of concern,” advancing regulations to reduce or eliminate use of those chemicals (via chemical bans that force companies to reformulate products), and developing programs through which industry must provide greater disclosure and data about the chemicals it uses.

Good grief. What a waste of emotional energy related to more government-sponsored fear mongering. It’s also a huge waste of our hard-earned dollars as the price of perfectly safe products will go up because companies will have to reformulate to make second-best alternatives.