ACC calls for ‘significant statutory reforms’ to Prop 65

The American Chemistry Council (ACC) says that a statutory overhaul of California’s Proposition 65 is needed, and hascalledon the Office of Environmental Health Hazard Assessment (OEHHA) to “revise or abandon” its proposed reform of warning label requirements. OEHHA’s proposed reformis aimed at improving the clarity and effectiveness of Prop 65 warnings. But ACC’s vice president of regulatory and technical affairs, Mike Walls, says that the trade group “believe[s] the proposed changes will lead to more consumer confusion, more uncertainty for business, and more private enforcement actions” instead. “The only way to address the many problems with Proposition 65 is through significant statutory reforms to this 30-year-old law,” he adds. According to Mr Walls, the ACC thinks that “significant changes to the statute” are needed to:

  • better inform customers whether or not products are safe to use;
  • modify how the current law treats all warnings as equally important and urgent;
  • address how Prop 65 forces warning disclosure “in many cases where it isn’t justified”; and
  • examine how the law deals with consumer products, as “the law was never intended to address” these.

In addition, the trade group takes issue with how the existing Prop 65 statute allows private entities to enforce its provisions in courts, which “has created an entirelawsuit industry”, says Mr Walls. Data compiled by the ACC shows that between 2000 and 2011, there were 2,381 Prop 65 settlements that totalled more than $170m. “There have been modest attempts at reform, but we see more bounty hunters than ever and the costs keep increasing,” says Mr Walls. “It’s time to understand that a piecemeal approach to ‘fixing’ this flawed statute hasn’t worked and is not going to achieve the goals of any of the affected parties: citizens, regulators and businesses.”


Legislative fixes fail

Under California law, amendments to Prop 65 must be passed by a two-thirds majority in the legislature. And in the 2015-16 legislative cycle, even relatively minor reform measures have failed. A bill (AB 543) that would have exempted businesses from providing a warning statement, if they completed a “qualified exposure assessment” that demonstrated that the exposure to the chemical was below threshold levels requiring a warning, died in the Assembly in January. A coalition of industry groups supported the measure, saying that it would reduce the ambiguity in the law around demonstrating exposure thresholds, which has led many companies to provide unnecessary warnings to avoid litigation. But the Centre for Environmental Health (CEH), a frequent Prop 65 plaintiff, said that the bill would allow exposure assessments to be done by private organisations, without oversight or opportunity for stakeholder review. A separate bill (AB 1252) would have exempted businesses with fewer than 25 employees from being sued for a Prop 65 violation, provided that the business put it right and payed a civil penalty within 14 days. The CEH also opposed the measure, on the grounds that it would “undermine the fundamental purpose of Proposition 65” and put employees working for small businesses “at particular risk of exposure to toxic materials”. It, too, failed to clear the Assembly before the January legislative deadline, despite the backing of several industry groups. The ACC did not take a formal stance on either measure. And Mr Walls says the ACC is not aware of any significant reform on the horizon that would address its concerns with existing law. “There needs to be broad recognition that the statute is fundamentally flawed and cannot be fixed with modest statutory and regulatory changes,” says Mr Walls, “The ‘guts’ of the statute have to be changed.”

Chemical Watch, 9 February 2016 ; ;