Excessive Prop 65 Warnings Are About To Get Even Bigger
Government officials in California might as well have used eminent domain to seize the amount of real estate they are about to take up with frivolous extended Prop 65 warnings.
Proposition 65 was a ballot initiative in 1986 that aimed at protecting consumers from carcinogens in tap water. While the intentions may have been good, the policy spun out of control. The law requires businesses to post warning labels on exposure to chemicals that may cause cancer or reproductive harm–and the bar is set extremely low.
This has left businesses putting warning labels on everything from coffee to parking garages not because there is a legitimate health risk to people, but because these businesses might get sued by bounty-hunting trial lawyers if they didn’t. In 2017, California lawmakers passed the California Cleaning Product Right to Know Act, a bill that expanded Prop 65 to prohibit the use of shortened labels on most packages. The law took effect on January 1.
Prior to the legislation, smaller packages could feature an abbreviated warning that would state:
“WARNING: Cancer – www.P65Warnings.ca.gov.”
Now, only packages that are 5 square inches or smaller will be allowed to use this abbreviated warning label. (A playing card is 9 square inches.) Any packages over 5 square inches are required to have the following verbose warning label:
“WARNING: This product can expose you to chemicals including [name of one or more chemicals], which [is/are] known to the State of California to cause cancer. For more information, go to www.P65Warnings.ca.gov.”
Any package over 5 square inches requires a warning that includes at least one of the chemicals that may be present in the product. (The state of California currently regulates more than 900 chemicals.) Businesses may have to include a complete list of the chemicals in the product in any online listing’s Prop 65 warning.
California lawmakers did not make any exemptions. Even chemicals that are included in de minimis amounts, meaning they are too trivial to require consideration in the eyes of the law, must be included on the warning label.
Even worse–small companies that don’t have the money to test all of their products for hundreds of different chemicals have tried to protect themselves by adding a generic Prop 65 warning to their product to ensure they wouldn’t get sued. This new rule eliminates this option and forces small companies to test everything.
This ridiculous policy will cost businesses a lot in testing, provides them with less space to show off their product and it will leave customers with unfounded fears of products that are not a significant threat to their health.
Prop 65 lawsuits are expensive and they kill jobs. In 2019, there were 613 Prop 65 claims brought forward totaling more than $12.7 million in settlements. (Roughly $11.2 million of the settlement money went to the trial attorneys.) Californian taxpayers pay an average of $594.74 in so-called “tort taxes” to fund the time wasted in courtrooms over Prop 65 cases. More than 242,000 jobs are killed per year because of Prop 65.
And just because a business isn’t based in California, that isn’t a defense. A business can be sued simply if their product can be purchased in California. So if your product is sold anywhere online, you’re liable.
Rather than protecting businesses and their employees from frivolous Prop 65 lawsuits, California just doubled down.
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