Prop. 65 warnings are just lawsuit fodder

Lawyers can get quite creative when it comes to legal schemes shaking bucks out of businesses. But two new lawsuit notices filed in June might take the cake for audacity. The lawyers are now claiming that businesses across California are failing to warn consumers about the public health hazard of—drum roll, please—water bottles and receipt paper.

Welcome to the latest chapter in California’s Proposition 65 madness.

Last month, lawyers gave notice to the California Attorney General that they intended to file suit over water bottles and receipt paper containing Bisphenol A (BPA). It’s not the first suit, and it won’t be the last, since BPA is widely used—in electronics, plastics and can linings of food and beverage products.

Businesses should brace themselves, because California’s labeling law, Proposition 65, allows anyone to sue a business if it doesn’t post a warning label. And with a light burden of proof on plaintiffs, low risk and high rewards, bounty-hunting lawyers have a cottage industry in shaking down businesses with lawsuit threats. In 2015 alone, these so-called “bounty hunters” collected more than $26 million in settlement payments from businesses—68 percent of which ($18 million) went to lawyers.

Now, the floodgates are open, and either consumers get drowned in warning labels, or businesses get drowned in lawsuits. So how did we get here?

While Prop 65 was sold to voters in 1986 as a “safe drinking water” law—and everyone supports safe water—it was crafted in such a way that rigs the deck for lawyers while failing to provide meaningful information for consumers.

A fundamental principle of toxicology is that the dose makes the poison. People can die from consuming too much water or baking soda. The mere presence of a chemical does not mean there is harm to people.

For example, take acrylamide, which is found in foods like potato chips and french fries and in coffee. It is blacklisted under Prop 65. Yet, one would have to eat 182 pounds of french fries every day to consume cancer-causing levels of acrylamide. If you eat that many fries, you’ve got more immediate problems than an increased risk of cancer.

Yet, because Prop 65 requires businesses to warn consumers about mere exposure to a chemical—not a legitimate risk—we’ve seen warning labels pop up ubiquitously on products as businesses try to avoid getting sued.

This farce doesn’t just hurt small businesses. One out-of-state manufacturer of safety equipment for the elderly lost tens of thousands of dollars for not having warning labels. Once again, there was no legitimate publichealth issue—unless California’s nursing home set decides to start eating the handles on safety appliances—and the lawyers walked away with an easy payday.

The California Office of Environmental Health Hazard Assessment has proposed changes to Prop 65, such as making warning labels scarier and requiring the naming of specific chemicals on a label. These are distractions. Without accurately communicating risk—or the lack thereof—or reforming the “bounty hunter” provisions, these changes won’t help average Californians.

California needs to reform Prop 65, or consumers and businesses will continue to lose while a handful of lawyers continue to make out like bandits. That’s a warning you can take to the bank.

Joseph Perrone, Ph.D., is chief science officer for the Center for Accountability in Science. He wrote this for the Mercury News.