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35 Envtl. L. Rep. News & Analysis 10850 (2005)
The Continued Success of Proposition 65 in Reducing Toxic Exposures

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     Copyright @ 2005 Environmental Law Institute@, Washington, DC. reprinted with permission from ELR@, http://www.eIi.org, 1-800-433-5120.
35 ELR  10850                                                                                                  12-2005


            The Continued Success of Proposition 65 in Reducing
                                             Toxic Exposures

                                   by Clifford Rechtschaffen  and Patrick Williams

                      Editors'Summary:  California 's Proposition 65 is by now a well-known regula-
                      tory tool for warning consumers  about  the potentially toxic components of
                      products they consume  or to which they are exposed. Rechtschaffen and Wil-
                      liams argue that while Proposition 65 has been subject to some abuses, it has
                      also brought about important reductions in exposures to toxic substances. To
                      make their point, they examine product reformulations caused by enforcement
                      of Proposition 65 's warning requirements over the past five years.

I. Introduction

Nearly 20 years have passed since California residents over-
whelmingly voted to enact Proposition 65, the Safe
Drinking  Water and  Toxic Enforcement  Act.  The  statute
contains two simple requirements: (1) it requires that busi-
nesses provide clear and reasonable warnings  prior to ex-
posing individuals to chemicals that cause cancer or repro-
ductive harm; and (2) it bans the discharge of those chemi-
cals to any source of drinking water.2 The statute remains as
controversial-if not more  so-than   when  it was first en-
acted. Media  attention in recent years often focuses  on
some  of the quirkier or more sensational enforcement ac-
tions-such  as suits about acrylimide in bread products and
French fries, or lead in chocolate3 -and on the statute's per-
ceived excesses-such   as suits by profiteering lawyers that
result in large fee recoveries relative to the penalties im-
posed.4 The  less frequently told story, however, is one of
continued success in removing  toxic chemicals from  con-
sumer  products and industrial activities.
Clifford Rechtschaffen is a professor at Golden Gate University School of
Law. Patrick Williams is a 2005 honors graduate of Golden Gate Univer-
sity School of Law. Thanks to Michelle Smith for her valuable research as-
sistance, and to Karalyn Buchner, Sue Fiering, Karen Kramer, Bill Verick,
and Ed Weil for their helpful comments on earlier drafts of this Article.
  1. Paul Jacobs, Inspired by Prop. 65 Authors Take Aim atAirPollution,
    L.A. TIMES, Nov. 6, 1986, at A3 (the measure passed with 63% of
    the votes).
  2. CAL. HEALTH & SAFETY CODE §§25249.5-25249.6 (West 2005).
  3. Melinda Fulmer, Sellers ofFrench Fries May Face Suits; Two Cali-
    fornia Environmental Groups Plan to Target Companies That Fail
    to Warn ofa Suspected Carcinogen, L.A. TIMES, July 3,2002, at C3;
    Janet Adamy, Bad Metals Found in Chocolate, Suit Claims; Groups
    Demands Warning Labels, SAN DIEGO UNION TRIB., May 12,2002,
    at A7.
  4. Monte Morin, Lawyers Who Sue to Settle: Filing Hundreds of Cases
     Citing Consumer Laws'Fine Print, They Rarely Go to TrialBut Col-
     lect Thousands From Badgered Businesses, L.A. TIMES, Oct. 26,
     2002, at Al.

   Since its enactment, Proposition 65 has generated sub-
stantial reductions in industrial air emissions of lead, ethyl-
ene oxide, perchloroethylene, and other contaminants, and
significant reformulations of consumer  products contain-
ing toxic chemicals,  often implemented   nationwide, in-
cluding brass faucets, ceramic ware, calcium supplements,
water meters,  water filters, galvanized pipe, crystal de-
canters, foil caps on wine bottles, brass keys, hand tools,
exercise weights, raincoats and other plastic clothing, elec-
trical tape, electrical cords and wires, bicycle cable locks,
compact  disk (CD) wallets, baby rash powders and creams,
anti-diarrheal medicines, hair dyes, hemorrhoidal  medi-
cines, nasal sprays, correction fluid, spot remover, paint
strippers, shoe waterproofing spray, nail care products, in-
cluding nail polish and nail polish remover, dandruff sham-
poos, bottled water, wooden playground structures, and por-
table classrooms, among other products. In other instances
where  reformulations are not feasible, notably fresh fish
containing mercury, Proposition 65 has led to valuable con-
sumer  warnings.
  Previous  articles have described many  of the environ-
mental  successes achieved  by Proposition 65  in the late
1980s and  1990s.6 This Article highlights some of the prod-

  5. The chemical(s) eliminated or reduced from the first 19 products
    listed (brass faucets to hair dyes) is lead; from hemorrhoidal medi-
    cines and nasal sprays, mercury; from correction fluid, trichloroeth-
    ylene; from spot remover, perchloroethylene; from paint strippers
    and shoe waterproofing spray, methylene chloride; from nail care
    products, toluene and formaldehyde; from dandruff shampoos, coal
    tar; from bottled water and wooden playground structures, arsenic;
    and from portable classrooms, formaldehyde.
  6. Clifford Rechtschaffen, The Warning Game: Evaluating Warnings
     Under California's Proposition 65, 23 ECOLOGY L.Q. 303 (1996)
     and How to Reduce Lead Exposures With One Simple Statute: The
     Experience of Proposition 65, 29 ELR 10581 (Oct. 1999); David
     Roe, Toxic Chemical Control Policy: Three Unabsorbed Facts, 32
     ELR 10232 (Feb. 2002); Michael Freund, Proposition 65 Enforce-
     ment: Reducing Lead Emissions in California, 10 TUL. ENVTL. L.J.
     333 (1997).

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