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36 Regulation 20 (2013-2014)
Too Much (Questionable Information); Do the Benefits of California's Proposition 65 Carinogen Right to Know Law Outweigh Its Costs

handle is hein.journals/rcatorbg36 and id is 224 raw text is: 20 / Regulation/ WINTER 2013-2014
EN VIRNMENT
TOO MUCH
(QUESTIONABLE)
INFORMATION?

Do the benefits of California's Proposition 65 carcinogen right to know
law outweigh its costs?
BY MICHAEL L. MARLOW

alifornia's Proposition 6S, the Safe Drinking
Water and Toxic Enforcement Act of 1986,
was approved by state voters to address
concerns about exposure to toxic chemicals.
Proposition 65 requires the state to publish
a list of chemicals known to cause cancer or
reproductive harm-a list that now includes
well over 800 chemicals. Businesses must notify Californians
about significant amounts of these chemicals in the products
they purchase, in their homes or workplaces, or that are released
into the environment. State businesses are also prohibited from
knowingly and intentionally discharging significant amounts of
the listed chemicals into sources of drinking water.
Surprisingly, few studies address the efficacy of this long-stand-
ing law that requires businesses to apply a clear and reasonable
warning label to any product carrying a cancer risk-defined as a 1
in 100,000 chance of any person exposed to the product contracting
cancer over a period of 70 years (lifetime risk). This article argues
that the net effects of Proposition 65 on public health are uncertain.
The frequency of warnings, the repeating of commonly understood
information, the use of complex and confusing labeling, the graphic
nature of the warnings, and the frequent public misunderstanding
of the risk posed by low-probability events are unlikely to steer
consumers toward decisions that improve their welfare. Some
consumers simply ignore the warnings, while others overreact and
substitute toward high-risk products because other products' labels
scare them into focusing on avoiding small-probability risks.
MICHAEL L. MARLOW is professor of economics and Distinguished Scholar at California
Polytechnic State University in San Luis Obispo, Calif.
This paper is based on a study conducted for the American Beverage Association.

The empirical section of this article examines whether cancer
rates in California have changed in the wake of this law. Little to
no evidence is found indicating that Proposition 65 significantly
influences cancer incidence in California. This article also argues
that the law imposes significant costs on many businesses, includ-
ing costs associated with legal services and lawsuit settlements.
The article concludes with a brief look at two possible reforms to
Proposition 65 that could improve both public health and welfare.
INTENTIONS AND LEGAL REQUIREMENTS OF
PROPOSITION 65
Proposition 65 resulted from increased public concern dur-
ing the 1960s and 1970s for the environment and its effects
on human health. As a result of that concern, Congress began
awarding federal agencies such as the Food and Drug Adminis-
tration, Environmental Protection Agency, and the Occupational
Safety and Health Administration growing responsibility for
regulating toxic exposure. Various groups in California believed
more restrictive regulation at the state level was necessary to
further protect public health. Proposition 65 is a product of
that concern and was approved by 64 percent of California vot-
ers in 1986.
The law requires the state to publish (and update at least once
a year) a list of chemicals known to cause cancer or birth defects
or other reproductive harm. The list contains a wide range of
naturally occurring and synthetic chemicals, including additives
or ingredients in pesticides, common household products, food,
drugs, dyes, and solvents. Listed chemicals may also be used in
manufacturing and construction, or they may be byproducts of

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