Proposition 65: The Invisible Revolution in Toxic Chemicals Regulation

Have you ever noticed a warning sign on a food packet or in an elevator stating it contains chemicals known to cause cancer and birth defects or other reproductive harm? You may vaguely recall seeing a few of these signs. But it’s the many warnings you don’t see that have made Proposition 65, officially titled the Safe Drinking Water and Toxic Enforcement Act of 1986, a success in keeping us safe from some of the most dangerous toxic chemicals that we know about.

On February 8, 2017, David Roe, a prominent environmental lawyer and the principal architect of Proposition 65, came to explain the unusual law at Stanford Law School.

While on staff with the Environmental Defense Fund, Mr. Roe drafted Proposition 65, which was passed by popular vote in the 1986 California election. Today, many 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.

Perhaps the most valuable lesson from our discussion with Mr. Roe was understanding the counter-intuitive strategy behind Proposition 65’s success – and the critical importance of precise statutory drafting.

Numerous federal laws to control toxic chemicals were already on the books when Proposition 65 was proposed, but all of them had been stymied by the same weakness: the ease with which businesses could delay the regulatory process for years or decades by dragging out a range of scientific debates – much like today’s global warning disputes.

Proposition 65 used the same scientific criteria for regulation as the federal laws, but with one crucial shift: if state regulators had not resolved certain scientific issues by a fixed deadline, then the business community might face greater liability, rather than less. How? Proposition 65 simply reversed the burden of proof in enforcement cases, so that businesses would have to supply the missing science, instead of government, to avoid liability. In other words, the business community suddenly felt a powerful incentive to help regulators complete their work, instead of trying to stall them.

A shift in burden of proof could only be fair, Mr. Roe explained, if it was limited just to chemicals already proven to cause cancer or birth defects and just to situations where the business creating exposures to such chemicals already knew it was doing so. Essentially, if a business knows it’s exposing people to a chemical that is known to cause cancer, it’s up to the business to know what the safety limit should be. Mr. Roe also explained that the consequence of failure was far from Draconian; liability under the key provision of Proposition 65 meant only that the business would be required to issue a clear warning about the exposure.

Once faced with the risk of having to warn their customers and neighbors about cancer risk, businesses quickly realized that full and final regulations, defining the safety limits for each chemical, would be to their advantage, and they found themselves demanding regulatory definitions instead of challenging and delaying them. Within a few years, California had defined safety limits for hundreds of specific carcinogens and reproductive toxins, many times what the comparable federal laws had been able to accomplish in decades.

Compliance with those safety limits was voluntary, not mandatory, since warnings could always be given instead. Mr. Roe pointed out that this apparent weakness in the law’s sanctions was a political strength, since opponents to the ballot initiative could not claim it would put them out of business or drastically raise their costs. The widespread compliance with Proposition 65’s hundreds of safety limits also demonstrated that such chemical controls were reasonable and workable in the marketplace, and not disruptive as many had predicted. Marketplace forces also created a snowball effect in Proposition 65 compliance, in that once one brand of a consumer product reformulated to eliminate a toxic chemical, all competing brands felt compelled to do the same, rather than risk being the one version on the shelf with a cancer warning.

The largely invisible effect of Proposition 65, causing many voluntary reductions in chemical risk in many contexts without calling any attention to them, is a significant policy success, according to Mr. Roe. However, because its effect is not readily apparent, Proposition 65’s success has gone largely unnoticed by legislators and other policy makers.

Although a state law, Proposition 65 has had a domino effect on consumer products nationally, since manufacturers who reformulate for California have realized that they could not afford to be seen selling a “clean” version of their product to Californians but a “dirty” version elsewhere. Since the passage of Proposition 65, toxic chemicals have been removed from thousands of products, from baby bottles to industrial materials, across the country. Likewise, total air emissions of Proposition 65 chemicals tracked by the federal Toxics Release Inventory fell twice as far in California as in the country as a whole during the law’s first decade.

Mr. Roe emphasized the importance of thinking about incentives when trying to design complex regulatory systems. He explained some of the drafting subtleties that were used to keep Proposition 65 from being undermined by the legal and lobbying tactics that regulated industries have used successfully at the federal level. He also noted that Proposition 65 had seized a rare opportunity in 1986, when opponents of the ballot initiative did not realize how effective such an unusual approach might be. Once opponents did see the impact, efforts in other states to duplicate California’s law were crushed by massively funded political campaigns.