Online Wine Yes, Coffee No: Scrambling To Keep Up With California’s New Prop. 65 Toxic Warnings
Cancer with your caffeine? Judging from the bleary-eyed java addicts queued up every morning at California’s 2,800 Starbucks, it’s a non-issue. Most folks don’t even notice the signs warning that the coffee and pastries contain acrylamide, a carcinogenic chemical produced when the beans are roasted and the croissants are baked.
And even those who do read those advisories ignore them, calculating that some things—well, that first morning cup of coffee, anyway—are worth the risks.
After all, California is studded with those warning signs. You see them at gas stations, bars, even Disneyland. Their omnipresence is dictated by Proposition 65, the 33-year-old voter-approved initiative that requires businesses to post warnings on products containing dangerous compounds.
In recent months, the state has opted to require “new and improved” warnings with more details, and to apply them to something that didn’t even exist when Prop. 65 first took effect: online markets.
The new rules also expand responsibility for the warnings to the entire “supply chain” associated with a product, from manufacturer to distributor to retailer.
As a result, visits to the state’s Prop. 65 website have skyrocketed—both from businesses and from the citizen “bounty hunters” who can make money by spotting and reporting violators.
But even as the measure has expanded to cover, say, online wine sales and marijuana dispensaries, it has run aground on the coffee warnings. After much pushback and debate about the potential health benefits of java, the state regulatory agency that oversees the proposition has a pending rule making the warnings unnecessary where coffee beans and brew are sold.
As for how the Prop. 65 warnings have changed? The original notices simply declared that a chemical known to cause cancer or reproductive harm was present in a product. Among other things, the new warnings must state that a product can “expose” consumers to harmful chemicals, name at least one of the chemicals, include a triangular yellow alarm symbol, and refer to additional and detailed information on a website maintained by the proposition’s administering agency, the state Office of Environmental Health Hazard Assessment.
Those warnings can apply to almost anything—fuels and solvents and coffee, of course, but also high-end fashion accessories, jewelry, furniture and cosmetics.
By 2018, Proposition 65 was noteworthy for two things: the ubiquity of the warnings and the general indifference of the public when confronted with them. It was unthinkable, for example, that anyone who needed a fill-up would run screeching from a gas station simply because there was a sign about carcinogenic chemicals positioned over the pump.
But the amendments seem to have spurned renewed interest in the regulation. They were adopted after a UC Davis researchers interviewed more than 1,500 people at DMV offices and found that more than 75 percent preferred the new proposed warnings over the old ones, and 66 percent supported warnings that specifically named a toxic chemical.
“During June 2018, before the new warnings took effect, the site had 107,000 users, 132,000 sessions and 348,000 page views,” said Sam Delson, OEHHA’s deputy director for external and legislative affairs. “During the peak shopping period from November 17, 2018 to December 16 2018, traffic surged to 874,000 users, 920,000 sessions and 1,573,000 page views.”
Many of the visits were from businesses looking for details on compliance, he said. Proposition 65 doesn’t directly punish manufacturers or retailers for hawking products that contain dangerous chemicals above state-decreed thresholds. As long as businesses comply with the warnings, they can sell most wares. But executives abhor the thought of warning labels appended to their high-gloss lipsticks or coffee tables—so much so that they often reformulate their products so a warning isn’t needed.
Other inquiries came from another group: bounty hunters, or “citizen enforcers” In Prop 65-speak. It turns out there’s money in them thar toxics. The proposition allows private citizens to sue manufacturers, distributors or retailers of non-compliant products and keep a portion of any settlements or fines.
Bounty hunters typically buy products that don’t have any warnings, pay a lab to test them for listed chemicals, then serve the purveyor with a 60-day notice if the items are not in compliance. Such a notice gives local district attorneys or the state attorney general the option of pursuing the case. Except in very rare and highly publicized cases, however, prosecutors pass due to heavy workloads. The citizen enforcer can then sue, presenting the business with the choice of a court fight or settlement. And in the vast majority of cases, businesses opt for settling, says John J. Allen, a partner with Allen Matkins Leck Gamble Mallory & Natsis, a Los Angeles-based law firm that defends plaintiffs in Proposition 65 cases.
“Unless there’s an absolute necessity to fight, it’s just easier and cheaper to settle,” says Allen. “If a business goes to court and doesn’t prevail, it risks paying the plaintiff’s legal fees and fines of up to $2,500 per day of exposure for each person who used the product. So if you’re talking, say, hair gel or plastic wristwatch bands, that’s potentially a great many exposures.”
Settlements typically range from $25,000 to $40,000, though some can reach six figures, said Tom Jonaitis, a toxicologist and the founder of RegTox, a consulting firm that deals with Proposition 65 issues. Plaintiffs also agree to reformulate their products or post warning labels.
When everything shakes out, attorney’s fees usually take 80 to 90 percent of such payouts. The remaining 10 to 20 percent comprises a stipulated penalty, with 75 percent of that figure going to the state and the remaining 25 percent going to the enforcer.
In 2017, the most recent year for which statistics are available, the state attorney general’s office recorded 688 Proposition 65 settlements totaling nearly $25,8 million.
Usually, an enforcer has multiple cases running at the same time, Allen says. “They’ll go to a mall or go online and look for a particularly line of merchandise, buy five or 10 items, get them tested, see which has listed chemicals and what the concentrations are, then issue notices.”
Many of the recent notices have targeted online wine retailers, says Ryan Landis, a principal of Polsinelli, a California law firm that defends businesses involved in Proposition 65 cases. Alcohol is a listed compound under the regulation, and its hazards must be noted in any sale conducted in the digital realm.
Alcoholic beverage sellers “now have to update their warnings to cover online and internet sales,” says Landis. “They were accustomed to simply including the warnings on the physical packaging.”
Regardless of whatever hassles Proposition 65’s warnings cause for businesses, the bottom line, supporters say, is that they work. When retailers reformulate a product to comply with California state law, they invariably sell that product nationwide, says David Roe, who drafted the original language of Proposition 65 while working as an attorney for the Environmental Defense Fund.
“It makes no marketing sense to peddle a ‘clean’ product in California and a ‘dirty’ one in the other 49 states,” says Roe. “Proposition 65 has been the single most successful law in the country over the last 30 years in reducing unnecessary exposure to toxic chemicals. The great untold story of 65 is that its impact has been largely invisible. Thousands of products have been reformulated to reduce toxicity. But no one realizes that because these products don’t have warnings. The more 65 succeeds, the fewer indications there are of that success. The ultimate goal of the proposition is to have no warnings, to have no evidence that its goals have been achieved.”
Allen agrees with that assessment—grudgingly, and to a point.
“If Proposition 65 has done anything beneficial, it’s reducing the number and concentrations of chemicals used in consumer products,” he says, “but it has achieved that in an awkward and inelegant fashion. There are ways of doing that without relying on an army of private enforcers who want to line their pockets. It’s like killing an ant with a sledge hammer.”
Speaking for the state, Delson acknowledges that “not everyone is a fan, but we believe Proposition 65 is an effective tool to help people make informed decisions, and perhaps more importantly, it has stimulated companies to make products safer by eliminating or reducing chemicals to avoid a warning.”
But then there’s coffee. The argument is that people are exposed to acrylamide from a variety of sources, not just cappuccinos. And the threshold limits established for the chemical under the regulation don’t necessarily correlate to greater peril. In multiple studies, coffee consumption is linked to lower cancer, diabetes and heart disease rates—lurking acrylamide notwithstanding.
When Los Angeles County Superior Court Judge Elihu Berle ruled last year that acrylamide exposure was covered under Proposition 65 and that warnings were mandated for coffee, it prompted a backlash fromfree enterpriserscarping about nanny state overreach.
The state, however—perhaps recognizing the political risks that could arise from denying a population their morning caffeination—is trying to ditch the warning. A pending regulation would clarify that exposure to chemicals via coffee consumption doesn’t pose a significant cancer risk and therefore doesn’t require Prop. 65 warnings. “We have been sued over the issue,” Delson acknowledged in an email, “but we expect to adopt it by June, 2019.”
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