Proposition 65 warnings becoming too common

Apreliminary decision by Los Angeles County Superior Court Judge Elihu M. Berle — that coffee should carry a warning that it is potentially carcinogenic because it has trace amounts of acrylamide — should be maddening to those who care about public health. That’s not just because it’s a decision that runs counter to the bulk of known scientific evidence or could lead to fines of hundreds of millions of dollars against reputable companies appropriately concerned about customer health. It’s because it seems that under Proposition 65, a 1986 ballot measure dubbed the Safe Drinking Water and Toxic Enforcement Act, the judge had no choice.

The law applies to companies with 10 or more employees that may expose people to one of a list of more than 850 potentially dangerous chemicals. Voters were told that it would exempt products that have health risks that are not “significant.” But that vague language hasn’t seemed worthy of invoking by many judges overseeing Proposition 65 lawsuits. Instead, if a product can be shown to have even a microscopic level of carcinogens, that is often seen as conclusive proof of it being a health risk.

This is particularly problematic when it comes to acrylamide, a chemical that is used in some industrial processes. It can also be created when foodstuffs are subjected to high heat. But instead of heeding the National Cancer Institute — which notes that “a large number of epidemiologic studies (both case-control and cohort studies) in humans have found no consistent evidence that dietary acrylamide exposure is associated with the risk of any type of cancer” — Judge Berle accepted evidence from lawyer Raphael Metzger of the Council for Education and Research on Toxics that the presence of acrylamide in coffee was sufficient to make it subject to sanction under Proposition 65.

The list of foods that could be targeted on the same grounds is staggering — starting with bread, potato chips, fried chicken and grilled meats. And no one should doubt that Metzger, who has been filing lawsuits of this sort since at least 2001, or some other trial lawyer will pursue additional litigation.

This scenario seems particularly perverse when one realizes people no longer view Proposition 65 the same as they did when it applied to only 30 items. The law requires signs warning of so many health risks to be posted in so many places — office buildings, gas stations, restaurants, theme parks, parking lots, hotels, etc. — that they are tough to take seriously. The ubiquity of these warnings also makes it difficult for the public to make a distinction between genuine risks and trivial ones.

This is just what Proposition 65 critics foretold back in 1986. Their opposing ballot argument said it “requires ‘warnings’ on millions of ordinary and safe items. We won’t know what products are really dangerous anymore. The warnings we really need will get lost in lots of warnings we don’t need.”

There’s a sense that’s true. In 2016, Gov. Jerry Brown won approval from state lawyers for reforms to Proposition 65 that made warning signs offer more specifics, such as noting the presence of arsenic at a business. But a better reform is an overhaul of Proposition 65 that makes far smarter distinctions between chemicals that are real-world risks to people — and not just theoretical threats that provide trial lawyers with opportunities for plunder.