In 1986, California residents voted for Proposition 65, a measure intended to address the risk of exposure to toxic chemicals. See, e.g., California Office of Environmental Health Hazard Assessment (OEHHA), “Proposition 65 in Plain Language,” Feb. 1, 2013, at https://oehha.ca.gov/proposition-65/general-info/proposition-65-plain-language. Proposition 65, which is also known as the state’s Safe Drinking Water and Toxic Enforcement Act (SDWTEA), “requires warning labels on products sold in California for about 900 chemicals known to cause cancer, birth defects, or other reproductive harm.” K & L Gates, “Recent Federal and State Actions In Support of Proposition 65 Exemption For Coffee Reinforces Need for Science-Based Nutrition Information,” JD Supra, Sep. 7, 2018, at https://www.jdsupra.com/legalnews/recent-federal-and-state-actions-in-63873/. Proposition 65 was intended to protect California residents, but it has generated a great deal of controversy. See, e.g., id. Recently, a number of legal analysts with diverse perspectives have discussed the rise in Proposition 65 lawsuits, the sources of disagreement, and how the statute has played out in California and the nation. See, e.g., id.
From 2010-2017, Proposition 65 lawsuits resulted in $182.1 million in settlements with businesses who arguably violated the labeling policy. See, e.g., Breanne Kincaid, “2018 Proposition 65 State Impact Report,” Center for Accountability in Science, Jun. 2018. Several legal angles exist with respect to the application, intent, and enforcement of the hotly-debated law. What follows are some of the recent considerations and complications that have been observed.
(1). Scientific Disputes: Proposition 65 was enacted to protect consumers by providing them with a list of chemicals known to cause health problems and to increase awareness through state-specified warning labels. See, e.g., OEHHA, supra. As one commentator observed, “[M]any credit Proposition 65 for significantly elevating the control standards for toxic chemicals, not only in California but nationwide. The law has significantly reduced or eliminated cancer and birth defect-causing chemicals from thousands of consumer products and industrial emissions.” Rina Kuusipalo, “Proposition 65: The Invisible Revolution in Toxic Chemicals Regulation,” Stanford Law School Environmental Law & Policy Program, Mar. 10, 2107, at https://law.stanford.edu/2017/03/10/proposition-65-the-invisible-revolution-in-toxic-chemicals-regulation/.
The rationale behind the success of Proposition 65 has been articulated by the environmental law attorney who drafted the policy: when manufacturers are required to prominently label products that contain toxic chemicals, consumer demand decreases and public outcry rises, which spurs businesses to “reformulate products to eliminate chemicals that can cause harm to consumers.“ Geoffrey Mohan, “Those California warning signs about cancer, birth defects or other reproductive harm are now naming names,” Los Angeles Times, Aug. 31, 2018. If this logic is correct, plaintiffs who sue businesses that fail to properly label potentially hazardous items are entitled to the sizable awards they have obtained and are, moreover, helping to effectuate innovation that will result in safer products. Given that three out of four companies that settled Proposition 65 cases in the past seven years are headquartered in states other than California, the legal impact is tremendous and nationwide. See, e.g., Breann Kincaid, supra.
The California Attorney General brought suit against companies that manufacture baby formula in June, alleging that the products at issue “cause lead exposure between 13 and 15 times the maximum allowable dose level” and that consumers were not given reasonable warnings of possible lead exposure, which violates the state law. See, e.g., Webwire, “California’s Attorney General Files Lawsuits Against Two Companies for Elevated Lead Levels in Toddler Formulas,” Sep. 18, 2018, at https://www.webwire.com/ViewPressRel.asp?aId=228870. To prevail in this lawsuit or similar cases involving Proposition 65, plaintiffs attorneys will require expert witness testimony. Experts in matters such as environmental science, food safety, water pollution, chemistry, and other specialized fields can establish whether a chemical in a particular product is unsafe and the extent of the dangers. Physicians, biologists, chemical engineers, and other science experts may help adjudicators decide how serious a violation is and, in so doing, address the issue of damages. In addition, because Proposition 65 is primarily concerned with prominent disclosure and warnings, those with expertise in product labeling and regulatory compliance can identify and assess the seriousness of violations.
On the opposing side, a number of analysts have argued that Proposition 65 does not actually improve public health and safety. See, e.g., Breann Kincaid, supra. According to one analyst who has expertise in biology and conducts research on the statute, “[t]he law was supposed to keep people safe from toxic chemicals, but today it’s responsible for meaningless warnings on everyday items like coffee, flip-flops, and toothbrushes. The warnings are everywhere, and consumers have tuned them out.” Id. If Proposition 65 warnings have become meaningless and do not advance the public policy they were intended to achieve, the statute’s validity may be contested by defendant companies. To persuade factfinders that the law does not improve health and safety, defense attorneys should retain expert witnesses. If, through specialists of their own, businesses can prove that Proposition 65 is counterproductive or that the warning labels it calls for are not assisting consumers, they will benefit greatly. Such arguments may decrease the penalties a company is assessed and challenge the law’s legitimacy. If experts can establish that a defendant’s compliance with Proposition 65 would not have improved a plaintiff’s position, they may help make inroads to the heart of a claim.
(2). Recent Changes & Requirements: In August, Proposition 65’s guidelines became stricter on businesses when regulators decided to change their definition of a “clear and reasonable warning” under the law. See, e.g., Geofrey Mohan, supra. The new rules require manufacturers to tell consumers which of the 900 chemicals California has identified as toxic are in their products. See id.In addition, the warning labels on such items, “which hitherto had hinted ominously at ‘a chemical,’ also will include a yellow triangular hazard symbol with an exclamation point, among other requirements.” Id.
The recent deadline for these new regulations to go into effect has caused several companies to panic. See id. Last month, a spokesperson for the OEHHA reported that “[t]he state office that oversees Proposition 65 has received at least 100 emails and ‘several hundred’ phone calls daily for the last two weeks from companies worried about the new rule — despite (some will argue because of) round after round of public hearings, comments, responses and revisions.” Id.
Legal controversies concerning whether companies acted reasonably and are following the new rules may arise, particularly since many entities seem to be scrambling to adapt to the changes at the last minute. See id. If such matters do become the subject of litigation, questions regarding whether certain conduct was reasonable must be answered, and both sides will need to furnish their best responses. The state and its agents may wish to use expert witness testimony to establish their claim that the new mandates and deadlines were fair to businesses. This may be accomplished by noting that companies had a two-year grace period to become compliant with the rule changes, coupled with expert testimony about the extensive notifications and numerous rounds of discussions the state provided businesses to voice concerns, ask questions, and ensure their actions would comport with the latest policy. See, e.g., id. Experts in product safety and industry standards can help define what measures should be legally expected of a defendant under the newest version of the law, how to determine if a warning is clear and reasonable, and what penalties would best further the goals intended by regulators.
In their defense, manufacturers could dispute the validity of the recent changes. In addition, defendants may claim that the new labeling requirements will not positively impact public health and safety. See, e.g., id. Critics contend the new policies that call for more labeling decrease public awareness of certain risks. See, e.g., id. A recent study conducted by Harvard and Vanderbilt discovered that Proposition 65 warning labels have become “so prevalent in California that they are likely ignored by many.” Id. As an analyst who examined the recently-imposed mandates observed, “Scientists and public policy experts have questioned whether consumers pay attention to the current warnings, and if they do, whether they are getting enough information to make wise decisions.” Id.
Expert witnesses are valuable to defense attorneys in several respects. They may persuade a court that a company did its best and should be treated with leniency. Scientists and medical professionals can provide evidence that the new procedures will not lead to improved public health and safety. Experts in business and corporate compliance can proffer testimony about what should be considered reasonable under the statute and how an alleged violator should be treated.
(3). Who is Responsible: One criticism of Proposition 65 is that it harms parties who are not causing the problems the law seeks to resolve. See, e.g., Breann Kincaid, supra. For example, “hotels, restaurants and real estate companies…have paid out several million dollars to ordinary citizens, environmental groups and their attorneys who accused them of failing to warn about the tobacco smoke, automotive fumes, pool chemicals, cleaning supplies, lawn pesticides, grilled meats and a plethora of other substances wafting through commercial buildings.” Geoffrey Mohan. supra.
In such instances, the service providers are not manufacturing products that contain toxic chemicals. However, they are subject to the same rules as a company that does produce such items, so if they do not provide warnings to consumers about the risks and harms associated with chemicals that may be present or emitted on their premises, they are vulnerable to litigation. See, e.g., id. Some commentators argue that it is unjust to penalize businesses that do not directly manufacture a product containing a chemical Proposition 65 deems toxic. See, e.g., id.; See Breann Kincaid, supra. Concerns have been expressed that small businesses, particularly retailers, may face unique challenges and be disproportionately targeted and harmed by the statute. See id.; See Joseph J. Green, “Prop 65: Notes from the Front,” Lexology, Sep. 24, 2018, at https://www.lexology.com/library/detail.aspx?g=18be92b3-2d6f-42ea-aa7b-172413501103.
As one analyst explained, “Small businesses end up bearing the brunt of Proposition 65 settlement costs, since large retailers…often use indemnity agreements to shift their liability to a product’s supplier or manufacturer.” Breann Kincaid, supra. If companies can demonstrate, that they are not the culprits, and penalizing them may cause them to become insolvent, they may be able to dispute the law and challenge its application in a particular context. Businesses will need experts to articulate why the law should not apply to a defendant or why certain provisions should be relaxed. Expert witnesses who can establish how tenuous the link between a business’s actions and the public policy interests behind Proposition 65 will be invaluable to companies who are otherwise in a weak legal position.
Small businesses, retailers, service providers, and similar entities may be able to mount a stronger challenge to Proposition 65 than manufacturers—experts could help persuade decision makers that since such defendants do not produce items containing toxins, their compliance with labeling laws will have no impact on whether undesirable chemicals are prevalent in specific products. This argument may be particularly compelling in the case of online retailers, and one attorney has already noted that Proposition 65 internet warnings warrant an entire discussion of their own.
To determine how far Proposition 65 should extend and to whom it should apply, expert witnesses can shed light on this complicated matter. Experts in e-commerce, retail, the service industry, product labeling, and related fields can help courts weigh the costs and benefits to Proposition 65 and address which parties should be liable under the law. These witnesses can also distinguish between cases in which a violator has caused a potential risk to the public, versus when a party’s actions would have little or no effect on health or safety.
California regulators were placed in a difficult position this summer after an eight-year legal battle over the safety of coffee products. See K & L Gates, supra. The OEHHA wished to exempt coffee from its list of items that contained potential carcinogens, but it faced opposition in the form of a state superior court judgment against coffee companies. See id. The Food & Drug Administration (FDA) expressed deep concern over the verdict, and it wasn’t the first time. A prior lawsuit concerning cereal found the FDA at cross-purposes with Proposition 65, and concerns have been raised that some of its requirements are at odds with science. See id.
California has become the preferred venue for many plaintiffs because any individual can file suit against a business for a violation under the law. See, e.g., OEHHA, supra. With the new requirements having recently gone into effect, scientific controversies, and questions pertaining to what parties should bear legal responsibility, the only certainty is that Proposition 65 litigation is increasingly uncertain. Attorneys who deal with such cases should utilize experts to provide clarity and assistance amidst the various ambiguities.