Well-intentioned regulations have unintended consequences
California’s Proposition 65, a landmark right-to-know law, is driving companies to remove toxic chemicals from their products not just in California, but across the United States, according to recent studies. The law, officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses to warn consumers about potential exposure to approximately 900 chemicals known to cause cancer, birth defects, or reproductive harm.
Any company that sells in California, regardless of where it is headquartered, must choose between two expensive options to comply with Prop 65: Use special packaging for California only, which would disrupt supply chains and logistics, or put warning labels on all products nationwide, which might frighten consumers outside of California who aren’t accustomed to seeing so many warning labels. Businesses across the country are being forced to increase prices and/or eliminate jobs in order to cover these rising costs, which will have a detrimental effect on you and your family.
A study published in Environmental Health Perspectives found that Proposition 65 has effectively reduced exposure to toxic substances both in California and nationwide. Researchers discovered that chemical concentrations in blood and urine samples decreased significantly after substances were listed under Proposition 65, with California residents showing lower levels compared to the rest of the U.S.
Another study, published in Environmental Science & Technology, revealed that 78 percent of interviewed business leaders said Proposition 65 has prompted them to reformulate their products. Notably, 63% of manufacturers reported that the law drives reformulation of their products sold outside of California as well.
Dr. Jennifer Ohayon, lead author of the study, explained, “Companies are incredibly reluctant to put a label on a product that says it contains a chemical that causes cancer, and that was the biggest driving force behind their decisions to reformulate.” This reluctance, combined with potential litigation risks and reputational concerns, creates a powerful incentive for companies to remove toxic chemicals from their products entirely.
The impact of Proposition 65 extends beyond individual companies, influencing entire supply chains. Third-party “green” certification programs have incorporated Proposition 65 chemicals into their safety criteria, further encouraging the use of supposedly safer alternatives.
Because Prop 65 is primarily enforced by frivolous lawsuits for “failure to warn,” it may also limit your access to your favorite products. This is all too familiar to Durascoop, a small company based in Illinois that specializes in “poop scoopers” for cat litter boxes. Because the scooper’s plastic handle did not have the Prop 65-mandated warning label, opportunistic plaintiffs filed a lawsuit against it in California. Durascoop and thousands of other small businesses nationwide may be forced out of business by the litigation and settlement expenses resulting from such cases.
As California continues to refine its regulations, other states are taking notice. New York introduced a more limited law in 2020 requiring disclosure of specific chemicals in children’s products and prohibiting certain substances by 2026. This trend suggests that state-level regulations can play a crucial role in protecting public health, especially in the absence of comprehensive federal regulations.
There has been very little research measuring the effectiveness of Prop 65. Some critics say the measure is just one of many state and local laws that burden local businesses and those that operate nationally, such as Vermont’s requirements for the labeling of genetically modified foods and New York’s calorie count laws. For businesses, their compliance costs result in higher prices, fewer jobs, and fewer products for a majority of citizens.
