The sheer number of Prop. 65 warnings has left Californians over-warned, under-informed and potentially unprotected, a Times investigation found. And it has funneled hundreds of millions of dollars to a handful of attorneys and their repeat clients.
Vermont Soap’s feel-good natural products came with everything a California consumer had come to expect: an organic certification, a Non-GMO seal of approval, a “cruelty free” bunny silhouette. And a warning that it harbored a “chemical known to the state of California to cause cancer, birth defects or reproductive harm.”
In Plesent’s case, he feared he could be sued over those same “yummy” natural replacements. One of them, a compound found in carrots, hops, lemongrass and cannabis, had been linked to cancerous renal tumors in male rats that were force-fed large quantities of it, five days a week, for up to two years. That earned it a place on the Proposition 65 list in 2015, over objections from the makers of sustainable products and carrot growers.
Where Proposition 65 prosecutions once targeted notoriously hazardous toxins such as mercury found in in hemorrhoid suppositories and lead in spiced Mexican candies, they now claim that cancer, birth defects or reproductive harm might arise from dalliances with bondage tape or from opening a Bible; from grasping a pair of pliers with bare hands, or donning polyurethane-coated safety gloves.
One $100,000 settlement over lead in salsa didn’t eliminate lead and didn’t result in a printed warning, either; it changed fine print on the label — the “portion” went from a tablespoon to a teaspoon. Another settlement for $40,000 tried to resolve an acrylamide exposure case by changing the preheating instructions for frozen organic potatoes before the attorney general declared the settlement contrary to the law, against public policy and unenforceable.
More than three decades into California’s right-to-know revolution, consumers today don’t know much about the health risks posed by consumer goods. It’s nearly impossible to tell whether to put down a product bearing a warning and choose one without it — either one may present a high risk, a low risk or no risk. The deepest internet dive is unlikely to surface an answer before consumers reach the checkout or finalize their order online.
Not even Roe thought Proposition 65 would pass in 1986. Few sweeping environmental ballot measures had survived vigorous industry-funded counter-campaigns. The Safe Drinking Water and Toxic Enforcement Act, as Proposition 65 was formally known, said that “no person in the course of doing business shall knowingly discharge or release a chemical known to the state to cause cancer or reproductive toxicity into water” or anywhere else where it might lead to a drinking water source.
“That doesn’t mean that if you wash with lemon grass soap you [will] be in danger,” said Plesent. “There’s a difference between 2% to 3% essential oils in a wash-off product and 100% essential oils being force-fed down your little mouse throat.” Two years ago, the sports fishing industry hired Easter after citizen enforcers accused member companies of exposing the lure-fishing public to illegal doses of phthalates, common plasticizers that can rub off their barbed versions of squid, shad and frogs.
That kind of science-driven accord is time-consuming and expensive. Plaintiff attorneys have sought more than a million dollars in fees in each of several long-running cases, according to court records.Most times, attorneys just work out a less expensive compromise. That’s what happened in the case of companies selling teaOver the course of two years, dozens of tea companies shelled out more than $1 million to one citizen enforcer and her attorney.
Nineteen companies banded together and went to court to defend themselves, led by Starbucks, maker of Teavana. Starbucks hired a top gun who knew Leeman, Chanler and Proposition 65 well — Michele Corash, who had advised opponents of the ballot measure back in 1986 and had won a milestone exemption for the meat industry, nullifying cases Leeman and the Chanler firm had filed against meat companies.
Leeman and Chanler were not done with the tea aisle. Four months after the Starbucks settlement, they filed violation notices against against three more tea companies: Bigelow, Hain Celestial and a distributor, Walong Marketing. “We look at cases all the time that are completely without merit but are too expensive to litigate,” Norris said. “You have to explain all the science to a judge who maybe last studied chemistry in 1968.”
Not enough for Gerry Schwalfenberg, a University of Alberta doctor whose toxicology study helped draw attention to heavy metals absorbed from soils by tea trees. He avoids any tea from industrialized areas of China.
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