The Lunacy of California's Prop 65

摘要

The Safe Drinking Water and Toxic Enforcement Act (Proposition 65) began as a pro-consumer law in 1986 - the result of a California ballot initiative that has spiraled into a cash cow for bounty hunter plaintiffs and left consumers confused and desensitized about warnings. Prop 65 prohibits manufacturers and retailers from knowingly and intentionally exposing consumers in California to chemicals "known" by the state to cause cancer, birth defects or reproductive harm without first providing a clear and reasonable warning. The state Office of Environmental Health Hazard Assessment (OEHHA) regulates and administers it. For starters, the inclusion of several of the chemicals covered by Prop 65 is based on little or no science. In addition, the law includes a private right of action provision allowing individuals and organizations to bring enforcement proceedings even if they have suffered no harm or have not purchased the products in question. Brands face a phalanx of what amount to private attorneys general effectively deputized by the state to enforce Prop 65. The incentives for private enforcement are massive: a 25% bounty on civil penalties (up to $2,500 per unit sold), recovery of attorneys' fees and burden-shifting that simply requires the private enforcer to demonstrate the mere presence of the chemical.