Online wine yes, coffee no: Scrambling to keep up with California’s new Prop. 65 toxic warnings

Go to a gas station and you are told you will get cancer, due to a Prop. 65 warning sign.  Go to most office buildings, you will see the same sign.  Buy wine, you will see the sign.  No facts behind the sign—it is just the law—everything causes cancer, hence a sign to buy nothing, eat nothing, use nothing and go nowhere—otherwise you will die of cancer.  Of course, this is just a money maker for government—to fine those that do not put up such a sign.  Until Starbucks fought back—laughed at the silly joke and said NO.  Now, the government agency will re-consider claiming coffee causes cancer.

Years ago alar caused the killing of the apple crop in numerous States.  That it caused cancer was a lie—but cost billions to the public and businesses.  The DDT pesticide scam by Rachel Carson cost a lot of money and millions of African lives—was she a racist or just ignorant?  Either way people died thanks to her scam.  Now California has Prop. 65 signs everywhere and most people totally ignore them—many do not even see them any more.

“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.

I bet Gavin Newsom still goes into government buildings with the Prop. 65 warning sign.  I venture that radicals like Pelosi, Harris and Feinstein have not changed their activities due to these signs.  In reality, this is about the growth of government, union jobs and government revenues—almost nothing to do with the health of Californians.

Prop. 65 warning

Online wine yes, coffee no: Scrambling to keep up with California’s new Prop. 65 toxic warnings

By Glen Martin, CalMatters,  3/22/19

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.

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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.”

Wine merchants face new requirements to ensure their online transactions don’t run afoul of California’s Prop. 65 toxics warnings.

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 from free enterprisers carping 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.”

About Stephen Frank

Stephen Frank is the publisher and editor of California Political News and Views. He speaks all over California and appears as a guest on several radio shows each week. He has also served as a guest host on radio talk shows. He is a fulltime political consultant.

Comments

  1. Paper bleaching chemicals cause cancer. It should be necessary for B&N and all other book store to post a ‘Read this, get cancer’ notice. All Books sold in California should have the same phrase posted above the title on the front cover. Libraries should have a sign ‘enter this building at your own risk of cancer’.

    All computers,cellphones and televisions should be required to carry a warning ‘electromagnetic impulses from this machine will cause cancer’.

    The materials in non-leather shoes are treated with cancerous chemicals. All shoes that have man-made parts should be required to bear the phrase ‘wearing these shoes may cause cancer of the foot, and could require you foot to be cut off at the ankle, or higher.’

    Bacon needs a similar warning: ‘eating this will cause you to die’.

    Carrots should be cut into smaller sticks for children, to reduce their carcinogenic effect. Studies show an excess of beta-carotene may be cancerous. All lunchboxes should carry the refrain ‘carrot sticks included in this lunch, by a well-meaning parent, may cause cancer.
    Such a food should be immediately slammed to the floor by the lunch-room monitor, and a stern and ominous note sent home to the parent that such foods are not allowed on school grounds’.

    Hats not made of natural, organic fibers and reeds contain materials and dyes which contain cancer causing chemicals. All such hats must bear the phrase ‘Wearing this hat will cause cancer, even if it may prevent skin cancers’.

    Almost every garment sold in California uses some form of cancerous chemical dyes or treatments. Clothes should be banned in California.

  2. CA causes cancer!

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