Hannah Shirar
California’s Proposition 65, commonly known as “Prop 65,” may be unrecognizable by name by U.S. consumers, but it nonetheless pervades U.S. markets and overall society. Prop 65 is the source of those pesky, off-putting warnings that state that the product you just purchased may expose you to “chemicals known to the State of California to cause cancer, birth defects or other reproductive harm.”[1] Despite its apocalyptic message, the warning appears on virtually all types of products—ultimately inundating consumers with this draconian memo.[2] For example, and perhaps ironically, such a warning against potential birth defects and reproductive harm has recently been spotted on baby mattresses and cradle cushions.[3]
The prevalence of Prop 65 labels can be traced back to its impetus for enactment. Following a series of oil spills which were minimally punished, California was left with severely contaminated land and water.[4] As a result of this contamination, Californians understandably developed distrust in their products and water sources,[5] but the EPA simply was not doing enough. Instead, Californians fought for some of that responsibility to fall to the companies contributing to that pollution.[6] This led to the adoption of the Safe Drinking Water and Toxic Enforcement Act (“Prop 65”) by public vote in 1986.[7]
Prop 65 “bars ‘any person in the course of doing business’ . . . from ‘knowingly and intentionally expos[ing] any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual.’”[8] Interestingly, Prop 65 entitles private citizens “to sue alleged violators to enjoin future violations and obtain civil penalties for past violations.”[9]
The idea behind this scheme was to “coerce companies into replacing toxic chemicals with safe ones rather than bear the burden of a Scarlet Letter stamped on their products.”[10] However, despite this admirable goal, very different practical consequences have resulted.
Companies have largely made the decision to simply include the labels rather than testing and reformulating their products.[11] In short, businesses “fear citizen-enforcer lawsuits more than they fear freaking out customers.”[12] This has culminated in the flood of Prop 65 warnings we now see on nearly every product in the market—and, unfortunately, this new norm is far from harmless to both businesses and consumers.
In addition to the exorbitant costs of defending against these cases,[13] many businesses are faced with frivolous lawsuits by opportunistic enforcers “preying on companies that can ill afford to defend themselves.”[14]
Moreover, the average consumer—often individuals who cannot even afford to act as citizen enforcers—likely pay the price for these large settlements and suits. On one hand, if the company decides to settle with a citizen enforcer, which is most often the case,[15] that company then does not have to take further accountability for the initial violation. In essence, if there is a deleterious chemical in its product, the company avoids disclosing it to most consumers—by and large, the average consumers—by paying out a settlement to the one enforcer.[16] On the other hand, if the company is unable to settle, the worst outcome for that business is legal damages to that enforcer, and adding a ubiquitous[17] Prop 65 label to its product. This added label is like a drop in the ocean of an oversaturated warning market. As a result, the average consumer is overwhelmed with warnings, contributing to significant fatigue[18] and the overall dilution of efficacy of these warnings.[19] Specifically, when consumers are constantly surrounded by warnings, these purchasers “become less attentive to labels as a whole, including some important aspects of labeling such as directions for proper use.”[20] This dilution is only exacerbated by the sheer volume of Prop 65 covered substances, which now recognizes over 1,000 chemicals,[21] with each offending product requiring its own label.
The ugly consequences that have flowed from Prop 65’s private enforcement model have been hotly debated in the context of fast food—and the California courts seem to be recognizing and attempting to backtrack some of the scheme’s problems.
Most recently, defendants[22] in California Chamber of Commerce v. Becerra[23]and California Chamber of Commerce v. Council for Education and Research on Toxics,[24] have petitioned the Supreme Court to grant certiorari to overturn a preliminary injunction which operates to prospectively bar other enforcers from suing fast food providers, such as McDonald’s and Burger King, over the presence of acrylamide[25] in their food and beverage products.[26] Notably, while the appellate court did not go so far as to define the temporal scope of the injunction, it did affirm that the injunction, at least applied to this particular case, as completely reasonable.[27]
This would seem to suggest that the problematic effects of Prop 65 have caught the attention of the courts and may be restricted as applied to fast food providers in the near future by judicial intervention. It is possible that this potential judicial intervention limiting Prop 65 may prompt legislation by the state of California to align with this narrowing attitude. Alternatively, these Prop 65 debates could induce the federal Congress to act, which would potentially preempt Prop 65 entirely through the application of the Dormant Commerce Clause. Time—and perhaps the Supreme Court—will only tell the future of Prop 65 in the fast-food industry.
[1] Geoffery Mohan, You See the Warnings Everywhere. But does Prop. 65 Really Protect You?, Los Angeles Times (July 23, 2020, 6 AM), https://www.latimes.com/business/story/2020-07-23/prop-65-product-warnings.
[2] See, e.g., id. (explaining that Prop 65 warnings are provided to Disneyland guests, parking garage patrons, hotel visitors, and notably, fast-food restaurant customers). See also @ryocoon, Twitter (Feb. 26, 2018, 3:37 PM), https://twitter.com/ryocoon/status/960975698390216705 (explaining that Prop 65 is “a running joke in California,” and that “everything requires a Prop 65 label, even the water we drink and the air we breathe”).
[3] See California Proposition 65, Nursery Works (2023), https://nurseryworks.net/pages/california-proposition-65; see also PB&Jammies, Cloth Diapers: Prop 65 Warning?, babycenter (July 17, 2014), https://community.babycenter.com/post/a51131158/cloth_diapers_prop_65_warning (explaining that parents spotted Prop 65 warnings on cloth diapers).
[4] Michael Waters, Prop 65 Was Meant To Protect Residents from Toxic Water. How did Warning Stickers End Up On Everything?, Vox (Oct. 31, 2019, 11:14 AM), https://www.vox.com/the-highlight/2019/10/24/20918131/california-prop-65-toxic-water.
[5] Id. (explaining that “in a 1986 LA Times poll, about 40 percent of Californians said they avoided tap water, many ‘out of concern for their health’”).
[6] Id.
[7] Id.
[8] Tobias J. Gillett, Lessons from Nutritional Labeling on the 20th Anniversary of the NLEA: Applying the History of Food Labeling to the Future of Household Chemical Labeling, 37 Wash. U. J.L. & Pol’y 267, 307 (2011).
[9] Chris McDonald, California Proposition 65 Litigation Update: Food and Beverage Warnings Cases Lead the Way, ABA Envtl. Litig. & Toxic Torts Committee Newsl., September 2006, at 5.
[10] Mohan, supra note 1.
[11] Id.
[12] Id.
[13] Id. (explaining that litigating Prop 65 enforcement has cost businesses more than $370 million in settlements since 2000).
[14] Id.
[15] Trenton H. Norris, Consumer Litigation and FDA-Regulated Products: The Unique State of California, 61 Food & Drug L.J. 547, 550 (2006) (explaining that “almost all Proposition 65 claims are settled before trial, many without substantial litigation”).
[16] See, e.g., id. (explaining that settlements do not necessarily result in a printed warning to other consumers, but instead just “a payment to the enforcer and her counsel in exchange for the agreement not to sue”).
[17] The warning label placed on these products have also been criticized as failing to actually apprise consumers of the risk. See David B. Fischer, Proposition 65 Warnings at 30—Time for A Different Approach, 11 J. Bus. & Tech. L. 131, 145 (2016) (explaining that “[t]he warnings lack the specificity necessary to ensure that the public receives useful information about potential exposures and encourage businesses to provide a warning even when none is required,” and “[t]hey ‘focus more on the identification of potential hazards than on helping consumers develop an understanding of the magnitude and probability of a potential hazard than can be used for informed decision making’”).
[18] Baylen J. Linnekin, The “California Effect” & the Future of American Food: How California’s Growing Crackdown on Food & Agriculture Harms the State & the Nation, 13 Chap. L. Rev. 357, 385 (2010).
[19] See Lars Noah, The Imperative to Warn: Disentangling the “Right to Know” from the “Need to Know” About Consumer Product Hazards, 11 Yale J. on Reg. 293, 297 (1994).
[20] Id.
[21] See Office of Envtl. Health Hazard Assessment, Chemicals Known to the State to Cause Cancer or Reproductive Toxicity, Jan. 27, 2023, https://oehha.ca.gov/proposition-65 (last visited Feb. 8, 2023).
[22] Notably, the Council for Education and Research on Toxics, or CERT, joined the state as Defendant in the following cases. Thus, the following two cases involve the same conflict and parties despite their differing names. See California Chamber of Com. v. Becerra, 529 F. Supp. 3d 1099, 1103 (E.D. Cal. 2021).
[23] 529 F. Supp.3d 1099 (E.D. Cal. 2021).
[24] 29 F.4th 468 (9th Cir. 2022).
[25] Acrylamide is one of the chemicals covered by Prop 65 and is prevalent in fried foods. Office of Envtl. Health Hazard Assessment, supra note 21.
[26] Becerra, 529 F. Supp.3d at 1123 (“While this action is pending and until a further order of this court, no person may file or prosecute a new lawsuit to enforce the Proposition 65 warning requirement for cancer as applied to acrylamide in food and beverage products . . . [and] [i]t applies to the Attorney General and his officers, employees, or agents, and all those in privity or acting in concert with those entities or individuals, including private enforcers.”)
[27] Council for Education and Research on Toxics, 29 F.4th at 483.
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