FEATURE
California's Prop 65: A Better Way to Regulate? The 1986 "right-to-know" statute is receiving renewed attention as a way to regulate toxic chemicals. R I C H A R D A. L O V E T T
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leven years ago, California voters approved a ballot measure that many observers believed would revolutionize toxic chemical regulation. Officially titled the "Safe Drinking Water and Toxic Enforcement Act of 1986," the law is better known by its ballot number: Proposition 65. The law requires that businesses publish warnings when exposing consumers to significant amounts of chemicals identified by the state to cause cancer or reproductive toxicity. Proposition 65 was expected to spawn a host of imitations; in the next few years, look-alike bills appeared in other states, including New York, Massachusetts, Ohio, Illinois, and Texas. But none passed, and Proposition 65 seemed more like a quirk in California law than a harbinger of revolution. Recently, though, the initiative has generated renewed interest. This year, a Proposition 65-inspired bill was introduced in the Massachusetts legislature with a lot of political support; even some of Proposition 65's opponents admit it has a good chance of being enacted. The approach has also drawn attention at the federal level, from scientists and administrators alike. The simplicity of Proposition 65 was revolutionary, combined with its shifting of regulatory burdens from government to industry. The government's only duty under the law is to compile a list of chemicals "known to the state" to cause cancer or reproductive toxicity. One year after a chemical is listed, businesses knowingly exposing the public to significant amounts of it, via consumer products, environmental releases, or workplace uses, must first give a "clear and reasonable warning." Eight months later, businesses are prohibited from discharging significant quantities of the chemical into drinking water sources. For carcinogens, "significant" specifies any amount that poses more than a l-in-100 000 lifetime risk of cancer; and for re~ productive toxicants 1 in 1000 of the no-observedeffect level
The most significant part of Proposition 65 is that the law takes effect on schedule, regardless of whether the government has established tolerances for particular chemicals. If the state has set a tolerance, that tolerance functions as a "safe harbor." If not, industry must be prepared to conduct its own risk assessments and defend them in court. Under prior law, according to David Roe, a senior attorney at the Environmental Defense Fund and principal author of the initiative, "no regulatory tolerance" meant "no regulation." "The most obvious feature of federal statutes is how long they have labored and how little they have produced." Under Proposition 65, however, the onus is on industry to encourage the government to issue "safe harbor" tolerances or risk legal action under the less predictable "significant risk" standard. The result, Roe boasts, is that Proposition 65 has already produced 282 tolerances—with no legal challenges from industry—compared with 7 tolerances for toxic air contaminants under the federal Clean Air Act. Technically, the law is simply a right-to-know statute. Except for the infrequently used prohibition of discharges into drinking water sources, even the most egregious exposures are permissible if appropriate warnings are given. In some settings, therefore, Proposition 65 warnings are simply given by rote, with little apparent interest from industry or the public. Almost every unleaded gasoline pump in California, for example, carries a Proposition 65 warning against inhaling the fumes. Many consumer chemical products now carry generic Proposition 65 warnings, stating "WARNING: This product contains a chemical known to the State of California to cause cancer [or birth defects]." Opponents of Proposition 65 have criticized the initiative for encouraging a proliferation of meaningless warnings. But Ed Weil, the California deputy attorney general in charge of Proposition 65 enforcement, suggests that even the seemingly most banal warnings may have value. "The public tends to have an on/off view of toxics: A chemical is either poisonous or perfectly safe," he said. "In the real
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world, some toxics are ubiquitous, and the only solution may be to minimize your exposure rather than avoid them totally. In a crude sense, Proposition 65 may be helping people understand this." However, cancer or birth defects warnings on many products in the marketplace can be extremely detritmental. Even the threat of having to give Proposition 65 warnings can prompt immediate reformulation of a product. Examples that have become public following enforcement actions include • eliminating trichloroethylene from typewriter correction fluid; • the discovery that lead was leaching into wine from foil caps, spurring the now-universal use of plastic or aluminum caps; and • a series of failure-to-warn cases in the mid1990s that caused industry to redesign plumbing fixtures and water pumps so that lead would not be leached into the water through brass parts. Proposition 65 is by no means an unmitigated success, however. When warnings are given, they are often vaguely worded generalities that convey little important information—not even the chemical's identity or how to reduce exposure to it. Similarly, product reformulation does not always protect public health. Consumer activists have forced many paint and adhesive manufacturers to reformulate products to avoid the use of toluene (listed as a reproductive toxicant), even if the reformulation uses xylene, which poses its own risks but is not listed as a Proposition 65 chemical. (Public actions brought by the state attorney general, however, do not encourage reformulations that substitute xylene for toluene.) Law's safety margins criticized Toxicologists almost universally disapprove of Proposition 65's 1000-fold safety margin for reproductive toxicants. "It is scientifically indefensible," says Jay Murray, a San Jose, Calif., consulting toxicologist who has served on the state's expert panel for identifying reproductive toxicants. "You can't select a single uncertainty factor that applies to all situations." Another issue has to do with private enforcement of the initiative. Proposition 65 allows anyone to bring legal action and permits private enforcers to collect attorneys' fees and 25% of the penalty as an incentive. This has resulted in almost 3000 private enforcement actions (often referred to as "bounty-hunter actions" by defense lawyers) filed or formally threatened in the past 10 years. Favorite targets for such lawsuits are manufacturers of paints, adhesives, and industrial-use chemicals. Industry claims that private enforcement is simply a means of legalized extortion. It is too expensive to defend such cases, argues Stanley Landfair, an attorney with McKenna & Cuneo, Los Angeles, who has defended many Proposition 65 actions, including those against bulk chemical divisions of petrochemical giants such as Shell and Ashland. All but two Proposition 65 enforcement actions have eventually been settled, typically with defendants paying the plaintiffs' legcil fees plus a reduced penalty rather than the cost of defending the action. California Deputy Attorney General Weil defends the initiative's private enforcement provisions. Recendy, at a seminar sponsored by the Wash-
ington, DC-based Food and Drug Law Institute, he criticized industry for "immediately demonizing" a new private enforcer, although thus far nothing "horrible" had happened. In general, Weil says, Proposition 65 has been effective in addressing chemical exposures that fall through the cracks of existing regulations but nevertheless produce substantial exposures to limited groups of people. An incentive to prevent pollution The ability of Proposition 65 to cause rapid product reformulation to avoid such exposures is what has drawn renewed federal attention to the initiative. A 1997 report by the Presidential/Congressional Commission on Risk Assessment and Risk Management urges government and industry to "aggressively" seek alternatives to command-and-control regulation, citing Proposition 65's product reformulation incentives as an example of how this can be achieved. In addition, Joseph Carra, deputy director of EPA's Office of Pollution Prevention and Toxics, has described right-to-know legislation, such as Proposition 65, as being a "better way to do things," frequently pro- The President's viding "substantial improvement in much less time and risk commission cost" than conventional command-and-control approaches. cites Proposition Currently, the issue is most active in Massachusetts, where 65's product a proposed bill, the Massachusetts Citizens' Right to Know Act, reformulation underwent public hearings in incentives as an May. The Massachusetts bill is based on the Proposition 65 alternative to model, with a state-developed list of affected chemicals and the command-andburden on industry to give warnings or be prepared to control regulation. prove that its products pose "no significant risk." Like Proposition 65, it is enforced in the courts rather than by regulatory action and allows private enforcement actions. It also retains the 1000-fold safety factor for reproductive toxicants Yet, the Massachusetts bill also contains important differences. The list of chemicals includes endocrine disrupters and neurotoxins as well as carcinogens and reproductive toxicants. Also, the risk threshold for cancer warnings is one-tenth that required of California's (a 1-in-l,000,000 excess risk of cancer), warnings must name the chemical at issue, and the statute applies only to consumer products, with no warning requirements for environmental releases or occupational exposures. Environmentalists are pleased at the potential transplant of Proposition 65's right-to-know approach to the East Coast. However, industry is concerned about its effect on interstate commerce. "The precedent that would be set by passage of the [Massachusetts bill] will lead to further Balkanization of state law," wrote James Coughlin, a consultant from Laguna Niguel, Calif., in Prop 65 News. Richard A. Lovett writes about Proposition 65 for orop 65 News, published by the American Environmental Institute, San Francisco, Calif. VOL.31, NO. 8, 1997/ENVIRONMENTAL SCIENCE S TECHNOLOGY/NEWS " 3 6 9 A
